BOUNDARY QUESTION BETWEEN THE REPUBLIC 

OF GUATEMALA AND THE REPUBLIC 

OF HONDURAS 



UNDER MEDIATION OF THE HONORABLE SECRETARY OF STATE 
OF THE UNITED STATES OF AMERICA 



BRIEF ON BEHALF OF HONDURAS 



ROOT, CLARK, BUCKNER AND HOWLAND, 

Attorneys for the Republic of Honduras 



EMORY R. BUCKNER, 
EDWARD SCHUSTER, 
AUGUSTINE P. BARRANCO, 

Counsel 



New fork, November, 1918 



Tin E«nlnf Poit Job PrintlnB Office, Inc.. 156 Fulton St., N. Y. 



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BRIEF ON BEHALF OF HONDURAS 



CONTENTS 

PAGE 

Statement of the Case i 

Events leading to the present Mediation. ... 4 ^^.. 

The papers filed with the Honorable Me- / ^^ "^ 

diator 6 

Description of outstanding geographical 
localities bearing upon the territory in 

dispute 8 

Claims of the two Governments 10 

The differences defined 13 

The Spanish colonial system 15 

Argument , 
I. The Guatemalan claim to the Ulua- 

FONSECA LINE IS UNTENABLE 20 

(i) The claim is based exclusively upon 
the real cedula of September 8, 

1563 20 

(a) The seven exhibits offered 
by the Representative of 
Guatemala as corrobora- 
tive refer to places distant 
from the Ulua-Fonseca 
line 21 

(2) The cedula of September 8, 1563, 

was expressly repealed by that of 

May 17, 1564 23 

(a) The contemporary evidence 

confirms this construction. 28 

{})) The subsequent history of 
Honduras and Guatemala 
confirms this construction . 34 



II 



(3) The cedilla of September 8, 1563, 

even assuming it were not re- 
pealed by that of May 8, 1564, is 
inconsistent with the cedulas 
which extended to the Captaincy- 
General of Guatemala the system 
oiintendencias \V[v\^\2.v\\.^di in New 
Spain by the Ordinance of In- 
tende^ites of December 4, 1 786. . . 36 

(4) The Constitutions of Guatemala of 

1825 and 1845 are inconsistent 
with the present Guatemalan 
claim to the line of Fonseca Bay 
and Ulua River 38 

(5) The cedula of 1563 is of no effect 

because inconsistent with the 
treaties between Honduras and 
Guatemala of May 12, 1839, 
August 14, 1839, March i, 1895, 
and August i, 1914 40 

II. The uti possidetis of 1821 is the con- 
trolling PRINCIPLE 42 

(i) The principle is well settled in Amer- 
ican international law and is 
founded on sound political and 
social reasons 42 

(2) The principle has been expressly 
adopted in Article 6 of the 19 14 
treaty between Guatemala and 



Honduras . . 



LIBRARY OF CONGRESS 



44 



Ill 



PAGE 



(3) The principle has been expressly 

defined in such terms by the rep- 
resentative of Guatemala in the 
present Mediation as to involve a 
waiver of any prescriptive rights 
to territory not covered by the 
uti possidetis of 182 1 and occupied 
by Guatemala since that year ... 45 

(4) Such waiver by Guatemala is proper, 

because there has been no change 
of legal status between the parties 
since 1821 ^g 

(5) The determination of the line of the 

uti possidetis juris of 1821 thus 
becomes a necessary step prece- 
dent to the suggestion by the 
Honorable Mediator of a com- 
promise boundary which will 
harmonize with the present day 
situation of the parties 50 

(6) In its application to the present dis- 

pute the principle of the ttti pos- 
sidetis of 1 82 1 is an historical 
reconstruction of the limits of 
political and ecclesiastical juris- 
diction in Honduras and Guate- 
mala at the close of the colonial 
period; every variety of evi- 
dence being admissible under 
the treaty of 19 14 to realize such 
reconstruction r i 



IV 



III. The evidence of a general character 
shows that under the principle of 
the uti possidetis of 1 82 1, honduras 
had possession both de jure and de 
facto at least up to the line of 
Cerro Brujo-Cerro Obscuro-Coyoles 
AND THE Managua River to its con- 
fluence WITH MOTAGUA RiVER, AND 
THENCE THE MoTAGUA RiVER TO THE 

SEA. This line also substantially 

DEFINES THE MODERN LIMIT OF HON- 
DURANEAN OCCUPATION 54 

(i) Spanish Colonial Legislation 57 

(2) Constitutional provisions and Gua- 

temalan legislation after 1821 . . . 60 

(3) Exercise of the electoral franchise 

before and after 1821 63 

(4) Colonial administration; official re- 

ports 65 

(5) Colonial land titles 70 

(6) Ecclesiastical evidence 79 

(7) Treaties between Guatemala and 

Honduras: and negotiations 

thereunder 86 

(a) Treaty of August 14, 1839. . 86 

(d) Treaty of July 19, 1845. ... 86 
(c) Treaties of March i, 1895 

and August i, 19 14 88 

(8) Cartographical and geographical 

evidence 89 



FA6BI 

IV. The line of possession in 1821 ran sub- 

stantially FROM CeRRO BrUJO THROUGH 
Cerro Obscuro to the Portillo de 
Caulotes or Coyoles; and Cerro 
Brujo and Cerro Obscuro are two 
points which have been definitively 
fixed by subsequent agreement of the 
parties 95 

(i) Cerro Brujo is the point of common 
boundary of Guatemala, Hon- 
duras and El Salvador 95 

(2) Cerro Obscuro has also been defi- 

nitively fixed as a point of the 
boundary 97 

(3) The line from Cerro Brujo through 

Cerro Obscuro to the Portillo de 
Caulotes or Coyoles is demar- 
cated in detail by evidence of 
several varieties submitted by 
Honduras in the present Media- 
tion. The evidence likewise sup- 
ports Honduranean possession 

behind the line 97 

(a) Land titles 97 

(d) Evidence of a political and 

judicial character 10 1 

(c) Ecclesiastical evidence 103 

V. The Copan region was within the limits 

OF the Intendencia of Honduras in 

182 1 106 

(i) The legislation of the Spanish Kings 

and the Cortes is confirmatory. 107 



VI 



PACE 



{2) The acts of the Governors, and later 
the hite7identcs, and of other 
officials of Honduras establish 
Honduranean jurisdiction over 

the Copan region 107 

{a) Evidence of a judicial nature. 107 

{b) Land titles 1 1 1 

[c) Miscellaneous evidence of ad- 
ministrative jurisdiction ... 115 

(3) The ecclesiastical evidence is to the 

same effect 115 

(4) The treaty of August 14, 1839, 

recognizes that the Copan region 

lay in Honduras 118 

{5) The treaty of July 19, 1845, ^^<^ 
Guatemala's Instructions to her 
Commissioner thereunder are to 
the same effect 118 

(6) The Guatemalan constitutions, legis- 

lation and acts of jurisdiction since 
independence are confirmatory . . 120 

(7) The cartographical and geographical 

data uniformly confirms the in- 
clusion of the Copan region in 
Honduras 123 

VI. Upon the principle of the uti possidetis 
OF 182 1 Honduras is entitled at least 
TO the line of the Motagua River 

FROM ITS confluence WITH THE MAN- 
AGUA TO THE SEA VIA THE SaN FrANCISCO 

River, which formed the channel in 

THE colonial PERIOD I 26 

(i) The evidence of colonial administra- 
tion supports this contention. ... 127 



VII 



(2) The land titles are corroborative. . . 131 

(3) The ecclesiastical evidence is to the 

same effect 132 

(4) The cartographical and geographical 

data support the Honduranean 
claim to possession of this sector.. 133 

(5) The diplomatic exchanges between 

Guatemala and Honduras result- 
ing in the treaty of 1895, Indi- 
cate Honduranean possession to 
the Motagua River 133 

(6) The Instructions to the Guatemalan 

boundary commissioner under 
the treaty of 1845 also indicate 
Honduranean possession to the 
Motagua River 136 

(7) Honduras is entitled to possession 

up to the San Francisco River, 
which was the channel of the 
Motagua River in 182 1 137 

VII. Upon the principle of the uti possidetis 

JURIS OF I 82 I, AS defined BY GUATEMALA 

IN THIS Mediation and accepted by 
Honduras, THE latter has legal title 
to the frontier up to British Hon- 
duras 140 

(i) The coast region west of the Mo- 
tagua River to Yucatan was in 
182 1 unorganized territory within 
the jurisdiction of the Intendente 
of Honduras 140 



VllI 



(2) The Honduranean title to the lit- 

toral west of the Motagua River 
is supported by the legislative 
history of the Province of Hon- 
duras 143 

(3) The Honduranean title to this region 

is also supported by the evidence 
of the exercise of jurisdiction 
therein, both political and eccle- 
siastical 155 

(4) The Honduranean claim is also cor- 

roborated by the cartographical 

and geographical data 1 60 

(5) The treaty of 1859 between Guate- 

mala and Great Britain covering 
recognition of British sovereignty 
in Belize is not inconsistent with 
the Honduranean title to what is 
left of the region 162 

Conclusions 165 



BRIEF ON BEHALF OF THE REPUBLIC 
OF HONDURAS 



STATEMENT OF THE CASE 

Guatemala and Honduras are bordering Republics 
of Central America. Guatemala, lying west and north 
of Honduras, contains about 49,000 square miles and 
has a population of about 1,500,000; Honduras is 
smaller, containing about 46,400 square miles and 
with a population of about 750,000. 

Columbus touched on the north coast of Honduras 
on his fourth voyage in 1502 and took possession of 
the region in the name of the Spanish Sovereigns, 
Ferdinand and Isabella. The early conquistadores 
followed soon after and on behalf of the Spanish Kings 
took possession of the region of Central America 
which remained a part of the Crown domain until in- 
dependence was declared in 1821. 

For administrative purposes Spanish America was 
divided into vice royalties and captaincies general. 
Both were kingdoms; the captaincies general being 
merely smaller than the viceroyalties. A collegiate 
authority, known sls tht Audiencia, functioned as the 
council of the viceroy or captain general. The district 
of the Audiencia was coterminous with the viceroyalty 
or captaincy general. Mexico was constituted as a 
viceroyalty, and the entire region south thereof which 



now comprises the States of Guatemala, Honduras, 
Salvador, Nicaragua, and Costa Rica, was embraced 
within the captaincy general known as Guatemala. 

The Audicncia of Guatemala was in turn divided 
into districts; the larger districts being known as 
provinces or governancies (gobernaciones), and the 
smaller as alcaldias mayores and corregimientos. The 
system is described in the General Code of Laws issued 
in 1680 for all the Indies, known as Recopilacion de 
Leyes de Jos Reinos de las Indias (Book V, title 1, law 
1). It was provided in Book II, title 15, law 6, that 
the Audiencia of Guatemala should embrace the prov- 
inces of Guatemala, Nicaragua, Chiapas, Higueras 
(as the Province of Honduras was known at the 
time), Cabo de Honduras, Vera Paz, and Soconusco, 
with the islands on the coast. Thus, the kingdom or 
audiencia, and one of the districts thereof, were both 
called Guatemala. 

The intendencia system in Mexico under the Royal 
Ordinance of December 4, 1786, was by subsequent 
royal cedulas or rescripts extended to the Kingdom of 
Guatemala. The Ordinance in Mexico, and these 
cedulas in the kingdom of Guatemala, preserved the 
territorial limits of each district. Thus the Provincias 
of Honduras and Guatemala became the Intendencias 
of these names. 

The ecclesiastical jurisdiction followed that of the 
political; the archbishopric corresponded to the audien- 
cia; the bishopric to the provincia or intendencia. 
(Recop.,B. II, t. 2, law 7.) 



On September 15, 1821, the peoples composing the 
districts of Guatemala and Honduras declared them- 
selves independent states. Those living within the ad- 
ministrative limits of the Intendencia of Honduras be- 
came not only independent of Spain but independent 
of Guatemala. The present State of Guatemala is thus 
the descendant not of the Audiencia of Guatemala or 
the Captaincy General of Guatemala, but only of the 
Province of Guatemala. 

Since 1821 no treaty has been signed, no constitu- 
tion has been adopted and no law has been passed, 
which substantially altered the boundaries then exist- 
ing; except that by the treaty of 1859 between Great 
Britain and Guatemala the British occupation of 
Belize ripened into sovereignty, to the detriment of 
Honduras, with respect to that portion of the coast 
region which lies west of the Sarstoon River and 
extends to Yucatan. The treaties into which Guate- 
mala and Honduras have entered since the year of 
independence have served to define the limits of the 
uti possidetis of that year enjoyed by the two colonies 
of the same names; and the constitution not only of 
the Central American Federation during its existence 
from 1824 to 1839, but also the constitutions of Guate- 
mala and Honduras during this period and after, as 
well as the organic laws putting them into effect, have 
served the same purpose of defining the line of pos- 
session between the two republics. 



Events Leading to the Present Mediation 
During the colonial regime the territory of the 
Audiencia of Guatemala was the private domain of 
the King of Spain, except during the brief constitu- 
tional interim (in 1812 and 1820-1821) when it was a 
portion of the public domain. He could partition the 
districts as he wished. If he had described in detail 
the limits of the Province or Intendencia of Honduras 
as distinguished from the Province or Intendencia of 
Guatemala, this dispute would not have arisen; but he 
did not. The matter was agitated soon after inde- 
pendence, in order that precise delimitation be made; 
and as there was no legislative action by the Federal 
Congress during the life of the Central American 
Union, after its dissolution, a treaty was signed by the 
two States of Guatemala and Honduras, on July 19, 
1845, which provided in Article 13 that "The States of 
Honduras and Guatemala recognize as their common 
boundary that laid down for the diocese of each in the 
Royal Ordinance of Intendentes in 1786". 

The negotiations under this treaty for the demarca- 
tion of the common boundary were abortive. A further 
boundary convention was signed on March 1, 1895, 
providing for a mixed technical commission to study 
the antecedents, documents and data (Article 1), to 
make record of its studies (Article 3), and to report 
to their contracting governments, which should con- 
sider (Article 6) — 

(1) "The lines marked in public docu- 
ments" ; 



(2) '"The extent of the territory which 
formed the ancient provinces of Honduras and 
Guatemala at the date of their independence"; 

(3) ''The provisions of the Royal Ordi- 
nance of Iiitendentes which then ruled"; 

(4) ''In general, all documents, maps, plans, 
etc." 

It was further provided that possession should only 
be considered valid in so far as it was just, legal and 
well founded in conformity with general principles of 
equity and with the general principles of law sanctioned 
by the law of nations. (Article 6.) The convention 
was to continue for ten years. (Article 16.) Under it 
commissioners from the two States met in 1908, 1909 
and 1910, and recorded the results of their work in a 
series of minutes. These minutes are available to the 
Honorable Mediator in a volume published in 1913 by 
the Honduranean Department of Foreign Relations, 
entitled Tratados Vigentes de la Repuhlica de Hon- 
duras. — Primer a Parte: Centro- America. In addition 
to settling Cerro Brujo and Cerro Obscuro as points 
in the boundary, these minutes determine in detail the 
modern line of possession from the common boundary 
of Guatemala and Honduras with El Salvador north- 
ward to the point known as Portillo de Caulotes or 
Coyoles. 

In 1914 a further treaty was signed, which is in 
the same terms as that of 1895, with the exception that 
provision is made for arbitration by the President of 



6 

the United States (Article 10) ; and that a new Article 
16 was inserted, as follows: 

**The high contracting parties declare that 
they recognize as valid the work carried out up 
to this date by the mixed boundary commission 
in virtue of and in accordance with the conven- 
tion signed in this city, on the first of March, 
1895, by the plenipotentiaries of both nations." 

This treaty is accepted by the parties as the law 
governing the present proceeding. 

The Papers Filed with the Honorable Mediator 

The papers filed with the Secretary of State of the 
United States as Friendly Mediator in these Proceed- 
ings are as follows: 

(A) The Minutes of the meetings with the Repre- 
sentatives of the two Governments, including the con- 
trolling treaty of 1914. 

(B) The Memoranda filed from time to time on 
behalf of the two Governments. 

(C) Working Maps: (1) The map (scale 1:400,- 
000) filed in May, 1918, accepted as geographically 
accurate by both Governments; (2) two sectional maps 
(scale 1 :50,000) filed on behalf of Honduras in which 
the line is treated in detail; (3) a map (scale 1:100,- 
000) which combines the features of all the other maps, 
filed on behalf of Honduras. 



(D) Bvidence: 

Guatemala's evidence consists of ( 1 ) a Real Cedula 
of September 8, 1563, and (2) eleven documents, sum- 
marized in an "Index" which is appended to the last 
memorandum filed on her behalf. 

The evidence produced to support the position 
taken by Honduras consists of nearly two hundred 
documents which have either been filed with the Honor- 
able Mediator or are included by reference to copies 
from printed sources; and also of seventy- four maps 
covering the entire colonial period and the early years 
of independence in Central America, reproductions of 
which have been filed with the Honorable Mediator. 
The documentary evidence, besides legislation of the 
Spanish Kings, treaties to which Guatemala and Hon- 
duras are parties, the actual and proposed constitutions 
of the Central American Union and the several consti- 
tutions adopted by the two Republics, consists of every 
variety of documents which in connection with the 
adjustment of the boundaries between States, especially 
those in Latin- America, have customarily been intro- 
duced in evidence — reports of administrative officials; 
grants of lands from the Crown domain; records in 
judicial proceedings; evidence of the territorial extent 
of ecclesiastical jurisdiction, which in the Spanish Col- 
onies have equal importance with evidence of temporal 
jurisdiction; and testimony of contemporary geog- 
raphers and historians. 

In addition, counsel to Honduras submit with the 
present Brief, as an exhibit thereto, a careful Report 



8 

upon the cartographical and geographical data avail- 
able, which has been prepared by Dr. Mary W. 
Williams, Professor of History at Goucher College, 
Baltimore. Dr. Williams was requested to conduct her 
research and report her conclusions, with the non-parti- 
san attitude of an historical investigator, in order that 
her report might inspire the greatest possible confi- 
dence. 

In referring to pages of the Notes or Memoranda 
filed on behalf of the two Governments, ''G" will herein 
be used for Guatemala and "H" for Honduras; ''App." 
for Appendix; "Exh." for Exhibit. Unless otherwise 
indicated page references will be to the English trans- 
lations of the Memoranda or Notes filed wath the Hon- 
orable Mediator. 

Description of Outstanding Geographical Localities Bearing 
upon the Territory in Dispute 

In order that the Honorable Mediator may more 
easily follow the discussion, a few of the principal 
points in the territory in dispute will now be mentioned. 
Referring to the small-scale map filed with the Media-* 
tor in May, 1918, and beginning in the southwest, we 
note: 

Cerro Brujo. — This is a mountain peak, w^hich is 
admitted by the Parties to constitute the common point 
of boundary of Honduras, Salvador and Guatemala. 

Cerro Ohscuro. — Another mountain peak, about 25 
kilometers northeast of Cerro Brujo, which was agreed 



upon as a point in the line by the boundary commis- 
sioners acting in 1908. 

The Co pan Region. — This comprises the valley of 
this name, wherein are located the famous Copan ruins, 
situated on the outskirts of the town of Copan. 

Portillo de Caulotes or Coyoles. — This is a point on 
the boundary line in 1821 and on the modern line of 
possession, near the Copan River and approximately 
on the parallel of the ruins of Copan, which, for con- 
venience of treatment in the present Brief, serves to 
divide the southern sector from the middle sector of 
the line. We have already noted that it was recog- 
nized as a point on the modern line of possession by 
the mixed boundary commission which functioned 
under the treaty of 1895. 

Managua River J — rises some 15 kilometers north 
of Copan, flows north until it meets the River Mota- 
gua, which flows thence east and north to the sea. 

Lake Isabal, — commonly known as Golfo Dulce, is 
west and north of the Motagua River. 

Cape Three Points, — also known as Amaiique or 
Manabique Pointy is a peninsular lying between Golfo 
Dulce and the mouth of the Motagua River, on- the 
inner side of which was situated San Gil de Buena 
Vista, founded in 1524 by Gil Gonzales Davila, the 
earliest settlement in Honduras. • - ••• • ' • . . 



10 

Amatique Bay, — also known as Manabique Bay, is 
the arm of the Gulf of Honduras lying behind Cape 
Three Points and the peninsula of Amatique. On its 
shore was located Sto. Tomas de Castilla, founded in 
1605 and abandoned in 1646 in favor of Castillo de 
San Felipe (also known as Puerto de Golfo Dulce) 
situated on this last named body of water. 

Comayagua, Higueras, and Hihueras, — are various 
names of Honduras. Comayagua was also the name 
of the capital city. 

Guatemala. — (1) the Audiencia, captaincy general; 
(2) the province and later Intendencia, in which the 
capital city was; (3) the capital city, often called San- 
tiago de Guatemala. 

Claims of the Two Governments 

Guatemala. — Referring to the map filed May, 1918, 
on w^hich the respective claims of the two Republics 
are indicated, it is seen that the claim of Guatemala 
goes to the River Ulua on the north coast of Honduras, 
along the river to its source and then in a straight line 
to the eastern shore of the Gulf of Fonseca on the 
Pacific side. The claim of Guatemala thus embraces 
about 15,000 square miles of the territory now in the 
possession of Honduras, that is to say, about one-third 
of the total extent of the territory of Honduras, within 
which about one-half of the present Honduranean 
population resides. 



11 

The contentions of the two Governments with 
reference to the Guatemalan claim meet sharply and 
are simply stated. Laying aside for the moment the 
eleven exhibits alleged to be corroborative, which refer 
to points much to the west of the Fonseca-Ulua line, the 
sole basis of the Guatemalan claim is a Real Cedula of 
King Felipe 11 of September 8, 1563 (inserted in the 
initial Guatemalan Memorandum of May 24, 1918). 
The answer submitted on behalf of Honduras is that 
this cedula was repealed eight months later by another, 
of May 17, 1564; and that this repeal is corroborated 
by every subsequent royal decree and historical fact. 

No alternative line is suggested by Guatemala as 
legally possible. 

Honduras. — In general, the line claimed by Hon- 
duras follows the present line of possession, except 
that, since about 1892, when construction on the 
Guatemalan Railroad out of Puerto Barrios began, 
the Motagua River has formed the western limit of 
actual Honduranean possession. 

Beginning at the southwest, it is submitted that the 
boundary starts from Cerro Brujo, the point at which 
Guatemala, Salvador and Honduras meet, and thence 
goes northeast through to the Portillo de Caulotes or 
Goyoles. This may befcalled the first section. 

From Coyoles the Hne runs north to the Managua 
River and thence along this river to its confluence with 
the River Motagua. This may be called the second 
section. 



12 

From the confluence of the Managua and Motagua 
Rivers it is claimed by Honduras that the boundary in 
the year of independence, struck northeast for the 
southernmost point of Golfo Dulce, and skirting the 
western shore thereof to a point a little above 15° 30' 
north latitude, ran in a straight line up to British Hon- 
duras. This may be called the third section. 

To sustain its claim in the first section, Honduras, 
in addition to the uti possidetis of 1821, relies upon 
Article 16 of the Treaty of 1914, which it is alleged 
ratified and incorporated by reference the minutes of 
agreement whereby the boundary commissioners act- 
ing under the treaty of 1895 fixed upon the two points 
in this line of Cerro Brujo and Cerro Obscuro. In 
answer Guatemala contends that the work of the pre- 
ceding commissioners was (a) ultra vires their powers, 
and (b) not complete. 

As to the second section, Honduras presents every 
class of probative evidence permitted to sustain the uti 
possidetis of 1821, relying particularly upon ancient 
title deeds. The answer by the representatives of 
Guatemala is a recurrence to the cedula of 1563, and as 
to the town of Copan, upon two isolated documents 
evidencing jurisdiction by the ecclesiastical authorities 
of Guatemala. 

For the claim up to British Honduras in the third 
section, Honduras relies upon various royal decrees, 
acts of political and ecclesiastical jurisdiction, and the 
testimony of cartographers and geographers to es- 
tablish the uti possidetis of 1821. Reference is also 



13 

made to evidence of occupation of the coast region east 
of Belize to a date as recent as 1865. As regards the 
territory of Belize westward to Yucatan, any question 
of title has been foreclosed by British occupation there- 
of since 1763. 

Again, in answer, Guatemala relies upon the 
cedula of 1563, 

The parties agree that the treaty of 1914 consti- 
tutes the law controlling the present controversy; and 
that the treaty fixes the uti possidetis of 1821 as the 
governing principle, which the Representative of 
Guatemala in the present Mediation has insisted, and 
the Representative of Honduras has in general 
assented, be formulated as the uti possidetis juris 
of this year. It follows that a condition precedent to 
the suggestion by the Mediator of a compromise, as in- 
dicated in his address of May 20, 1918, whereby he 
opened this proceeding, is an ascertainment by the 
Mediator of the true legal line as of 1821. The present 
Brief is limited to a discussion of this question; and 
the contentions therein made should not be considered 
as in any manner to embarrass the Honorable Media- 
tor's freedom of action. 

The Differences Defined 

The controversy as to the true legal boundary on 
the principle of the uti possidetis juris of 1821 may be 
definitely settled by consideration of the Notes and 
Memoranda filed with the Honorable Mediator by the 



14 

Representatives of Guatemala and Honduras and of the 
evidence now before him. There are only a few prime 
issues upon which all other disputable points depend. 
These may be stated as follows : 

1. Was the Real Ccditla of September 8, 1563, in 
force in 1821 ? If it was not, what decrees of the Span- 
ish Kings were then operative? 

2. Is Cerro Brujo the common point of boundary 
of Salvador, Guatemala and Honduras, and is it the 
southern terminal of the last two republics? 

3. I-s Cerro Obscuro a point on the boundary be- 
tween Guatemala and Honduras binding upon them at 
the present day? 

4. Was the Valley of the Copan within Honduras 
in 1821? 

5. Did the Intendens^m of Honduras have jurisdic- 
tion westward in 1821 at least to the Motagua River? 

6. Did the Intendente of Honduras also have juris- 
diction in the year of independence over the coast 
region at least as far west as the frontier with British 
Honduras ? 

If these controlling questions are answered, the 
Honorable Mediator may easily define the line of the 
uti possidetis juris of 1821 ; and with this line as his 
point of departure, he will be in a position to suggest 



15 

a compromise line which will take into consideration 
the changes in the occupation de facto since indepen- 
dence and the just aspirations of the two Republics. 

The Spanish Colonial System 

The Mediator should be provided with some ac- 
count of the governmental machinery which functioned 
in the Captaincy General of Guatemala during the 
colonial epoch. Such account will lighten his labors 
in considering the issues which have arisen between 
Honduras and Guatemala, in weighing the evidence 
submitted by them and in reaching his conclusion. 

At the top of the system stood the King, whose 
word was law, except for the brief time that the Con- 
stitution of 1812 was in force. In practice, the King 
relied for the administration of the Colonies upon the 
Board of Trade {Casa de la Contratacion) and the 
Council of the Indies (Consejo de Indias). Rigid de- 
tailed supervision was practiced over colonial affairs, 
as to commercial restrictions principally by the Board 
of Trade, and as to all legislative and judicial matters 
by the Council of the Indies. The royal ordinances, 
cedulas, instructions, orders, etc., from time to time 
issued for the Indies, were codified in 1680 in the 
Recopilacion de Indias and in the main continued in 
force until the emancipation of Central America. It 
was provided in Book II, title 2, law 2, that the Council 
should have supreme legislative jurisdiction. 



16 



In America the King's representative was during 
the period of discovery and conquest the adelantado. 
Subsequently he became the Viceroy and possessed the 
entire royal authority in the kingdom. He was mili- 
tary governor and the royal treasurer. All other of- 
ficers and subjects, both ecclesiastical and secular, had 
to yield to his superior authority. See Recop. de 
Indias, Book III, t. 3, 1. 1. Law 5 constitutes the 
viceroys as governors of their respective provinces. 

In the smaller kingdoms, such as Guatemala, the 
supreme governor was not a viceroy but a captain gen- 
eral, — "king of a smaller kingdom". The captain gen- 
eral or the viceroy was the president of the aiidiencia, 
which was at once a privy council, and a supreme 
judicial court and legislative body. The Code of the 
Indies divided Spanish America into twelve audiencias, 
of which the captaincy general of Guatemala was one. 
(Book II, t. 15, 1. 1.) In Guatemala the audiencia sat 
at the capital city of Santiago, and was constituted 
with a president, five judges (oidores), one solicitor 
(fiscal), one high sherifif and other officers. (B. 11, 
t. 15, 1. 6.) It embraced various subordinate districts 
which varied at different times, but always two of these 
districts were that of the capital city or province 
known as Guatemala and that of Honduras or Coma- 
yagua. 

Within the provinces or governancies as they were 
called, subdivisions were made up of alcaldias mayores 
and corregimientos (Recop., B. II, t. 15, 1. 1), which 



17 

were in effect enlarged counties. Towns and villages 
were known as ciudades and villas, governed by alcal- 
des mayores, alcaldes ordinarios and regidores, the 
alcaldes and regidores together comprising the cabildos 
or municipal councils. 

The relations between the supreme officials of the 
Captaincy General or Audiencia seem complicated in 
comparison with the well defined separation of legis- 
lative, judicial and executive powers in modern gov- 
ernments. But the complexity to an extent disappears, 
if it is borne in mind that the relations between the 
central and provincial authorities have an analogy to 
the relations between the federal and state govern- 
ments of the later Central American Federation. 

The Captain General was President of the Audien- 
cia and, if he was a lawyer, could take part in its 
judicial labors. (Recop. de Indias, b. II, t. 2, 1. 44.) 
He was also the political and military head of the King- 
dom and the hierarchical superior of the governors and 
alcaldes, including those of the province of Honduras. 
(B. II, t. 15, 1. 43.) He had certain supervisory 
powers over all the officials of the kingdom, both 
central and local. He could make ad interim appoint- 
ments in the local governments. (B. V, t. 2, 1. 4.) 
As vice patron, in the king's stead, he was civil head 
of the church and could interfere in local appointments, 
exemptions from jurisdiction of the ordinary courts 
and in educational and charitable matters. In arduous 
and weighty matters of government, he was enjoined 



18 

to act by accord with the other members of the aiidi- 
cncia. (B. Ill, t. 3, 1. 45.) In addition he was gov- 
ernor of the province of the same name in which lay 
the capital city, Santiago de Guatemala. (B. II, t. 15, 
1. 45.) 

The territory of the archbishopric corresponded to 
that of vice-royalty or captaincy general; and the dio- 
ceses of the bishops, to the provinces. Thus, the arch- 
bishopric of Guatemala coincided with the audiencia 
of Guatemala ; and the bishopric of Honduras with the 
province (and later the intendencia) of Honduras. 
(B. II, t. 2, 1. 7.) The archbishop, in addition to his 
hierarchical authority over the bishops, exercised di- 
rect jurisdiction over the diocese of Guatemala proper. 

The officials of Honduras, on the other hand, could 
only function within Honduras (B. II, t. 1, 1. 1); 
hence their acts could not have the equivocal character 
of those of Guatemala. 

The two-fold authority, central and local, of the 
Captain General and of the Archbishop of Guatemala 
is emphasized, because all their acts of general juris- 
diction, although having a local effect within one of 
the provinces, for example Honduras, do not cease to 
reflect general jurisdiction; and therefore they do not 
furnish evidence in the present Mediation in diminu- 
tion of the territorial authority of the provisional Gov- 
ernor of Honduras. 

Such was the system in the Captaincy General of 
Guatemala until the new system of intendencias, origin- 



19 

ally implanted in Mexico under the Ordinance of 1786, 
was extended to Guatemala, by a series of royal cedillas 
and orders in 1787, whose effect vnll be discussed here- 
inafter. 

For general authorities on the political, ecclesias- 
tical and administrative system in the Spanish Colonies 
see the following: Altamira, Historia de Bspana, vol. 
IV, sec. 811 ; Juan Diez de la Calle, Memorial y Noti- 
cias Sacras y Reales (1646), ch. 4; Bancroft, History 
of Central America; History of Mexico, vol. Ill, ch. 24, 
27; Bourne, Spain in America, pp. 206-234; Moses, 
Establishment of Spanish Rule in America, ch. 4; 
Spanish Dependencies in South Anierica, vol. I, ch. 14- 
15; Roscher, Spanish Colonial System (ed. Bourne); 
Keller, Colonisation, ch. 8; Velez Sarsfield, Relaciones 
del Est ado con la Iglesia en la Antigua America 
Bspanol; Smith, Viceroy of New Spain; Hill, "Office 
of Adelantado", Political Science Quarterly, vol. 
XXVIII, pp. 646-668; Jones, "Local Government in 
Spanish Colonies", 5. W. Historical Quarterly, vol. 
XIX, pp. 65-90. 



20 

ARGUMENT 

I. 

THE GUATEMALAN CLAIM TO THE ULUA-FONSECA 
LINE IS UNTENABLE. 

(1) The claim is based exclusively upon the real cedula 
of September 8, 1563. 

In the first memorandum filed May 24, 1918, on 
behalf of Guatemala the royal decree or cedula issued 
by the King of Spain on September 8, 1563, is set forth 
(pp. 26, 27) as "demarking in a clear and precise man- 
ner the territorial jurisdiction of Guatemala." In each 
subsequent memorandum the Guatemalan representa- 
tive has relied upon the validity of the line thus marked 
out. In the final summary filed on behalf of Guate- 
mala it, together with the cedula of May 17, 1564, to 
which the representative of Honduras called the atten- 
tion of the Guatemalan representative, are stated to be 
"the only documents that must be taken into considera- 
tion for the solution of the controversy". (G. Note, 
Sept. 21, 1918, p. 6.) 

In the first memorandum filed by Guatemala the 
cedula of 1564 was not mentioned. After it had been 
brought forward on behalf of Honduras as repealing 
the cedida of 1563, the cedida of 1564 was construed 
by the representative of Guatemala as confirming that 
of the year previous. 

It is not alleged that at any time subsequent to 1563 
has Guatemala had possession or exercised political or 



21 

ecclesiastical jurisdiction up to the Ulua-Fonseca line. 
On the contrary it is admitted that this vast extent of 
territory, especially the southern portion from Cerro 
Brujo to Fonseca Bay, has been in the possession of 
Honduras both before and after 1821; that the terri- 
tory now claimed constitutes about one-third of the 
region always considered as belonging to Honduras; 
and that the people within that district have lived up 
to this time acknowledging allegiance to the Republic 
of Honduras. Nevertheless, the representative of 
Guatemala in his several notes has reiterated that all 
these considerations must be disregarded and the 
boundary line established in accordance with the 1563 
cedvila, applying strictly the principle of the uti possi- 
detis juris of 1821 (further discussion and references 
in point H). If this 1563 cedilla is shov/n to have 
been repealed or never to have taken effect, the Guate- 
malan claim to the Ulua-Fonseca line falls to the 
ground; leaving the Honorable Mediator to determine 
the legal boundary substantially on the evidence of- 
fered by Honduras. 

(a) The seven exhibits offered by the representatives of Guate- 
mala as corroborative refer to places distant from the Ulua-Fonesca 
line. 

It is true that on'^behalf of Guatemala are cited 
seven documents alleged to be confirmatory. The doc- 
uments are summarized in the ''Index of the pro- 
batory documents and reasons therefor", filed with the 
final Guatemalan Note of September 21, 1918. 



22 

Of these, two are said to be useful as antecedents 
of the rescript of 1563: 

(i) The first is a royal decree of December 15, 
1527, appointing Pedro de Alvarado Governor of 
Guatemala. By this document Guatemala alleges that 
"It is shown that since the time of its origin the Prov- 
ince of Guatemala extended to Yucatan". Yucatan is 
hundreds of miles from the Ulua-Fonseca line. 

(ii) The second antecedent document is a letter 
from Francisco de Montejo dated July 28, 1533, which 
is alleged to show that a boundary question existed 
and was settled in 1563 and 1564. So far as the early 
dispute may be relevant, we are of opinion that it was 
a dispute within the Province of Honduras between 
the two adelantados as to who was entitled to govern 
it. 

Five documents are then cited in the summary as 
confirming the rescripts of 1563 and 1564. Those let- 
tered {a) and {h), dated May 23, 1675, and August 
27, 1676, refer to the Golfo Dulce territory, far distant 
from the Ulua-Fonseca line; document (c) is a letter 
from the Archbishop of Guatemala dated about 1678, 
which may show something of the activities of the 
Archbishop, and consequently the extent of the Arch- 
bishopric, which was coextensive with the Audiencia 
of Guatemala, but hardly can be said to indicate any- 
thing concerning the lesser political district of the 
Province of Guatemala; {d) and {e) are documents 
with reference to ecclesiastical jurisdiction in the 



23 

Copan Valley in 1778 (properly 1768-1769) and 1784, 
again far distant from the Ulua-Fonseca line. 

These constitute all the documents referred to on 
behalf of Guatemala in support of the extreme claim. 

Reference is then made to five further documents 
which are said to destroy the territorial claims of Hon- 
duras. These will therefore be subsequently considered 
in due course. 

It may also be noted that the first two exhibits filed 
on behalf of Guatemala with the Guatemalan mem- 
orandum of June 25, 1918, which related to matters 
in the turbulent period subsequent to independence 
and prior to the establishment of the Central Ameri- 
can Federation in 1824, are abandoned in the final 
"Index" here under review. 

(2) The cedula of September 8, 1563, was expressly 
repealed by that of May 17, 1554. 

Guatemala's claim to the line of Fonseca Bay^ — 
Ulua River is based upon one of the two cedulas of Sep- 
tember 8, 1563, namely that which her representative 
produced with his Note of May 24, 1918 (p. 26). Hon- 
duras countered this claim by producing the second 
cedula of September 8, 1563 and that of May 17, 1564 
(H. Note, June 22, pp. 18-21), and contends that a 
natural construction of the three rescripts shows that 
that of 1564, in so far as the delimitation of the 
province of Guatemala was involved, expressly set 
aside the boundaries of the province as defined in the 
1563 cedula and restored those previously observed. 
There would seem to be little doubt of such repeal. 



24 

These three cedillas deal with two subjects, one the 
transfer of the audicncia from Guatemala to Panama, 
and the other the boundaries of the provinces of Guate- 
mala and Honduras. In the present Mediation we 
are not concerned with the aiidiencias; our problem 
being the delimitation of the two provinces, as con- 
tained in the second cedula of 1563 and the repealing 
cedula of 1564. Accordingly we may dismiss from 
further consideration the transfer of the andiencia, 
merely noting that the audiencia of Guatemala was 
restored by the cedula of June 28, 1568. (Text in 
Peralta, Costa Rica, Nicaragua y Panama, p. 416.) 

The second cedula of 1563 and that of 1564 treat 
of the provinces as such. The mere comparison of the 
enacting portions of each shows that the later cedula 
expressly repealed the earlier: 

Real Cedula Real Cednla 

Qaragoga, September Bscorial, May ly, 1^64 
8, 1563 

". . . That Luis de ''. . . That Juan 

Guzman, our Governor Busto de Villega, who 

of the said Province is our Governor of the 

of Tierra Firme . . . said Province of Tierra 

shall pass to said prov- Firme . . . shall pass 

ince of Guatemala there to said province of Guat- 

to have the government imala there to have the 

of said province and government of said prov- 

because it is well and ince. Because' it ' is well 

advisable that it be and advisable that the dis- 

known what are the dis- trict and the limits which 

trict and limits which the said government of 

said governancy of Guat- Guatimala is to have 

imala shall have, by these shall be known, by these 



25 



presents . . . we do de- 
clare and command that 
the said governancy of 
Guatimala shall have as 
limits and district from 
the bay of Fonseca inclu- 
sive and the Ulua River 
inclusive with the vil- 
lages of Sant Gil de 
Buenavista and the town 
of Gracias a Dios". 



presents . . . we do de- 
clare and command that 
the said governancy (gov- 
ernacion) of Guatimala 
shall have for limits and 
district from the Bay of 
Fonseca inclusive to the 
province of Honduras ex- 
clusive by straight line 
{line a rata) and that for 
that part which borders 
with the province of Hon- 
duras it shall remain ac- 
cording to the boundaries 
(terminos) which until 
now it has had . 

WHICH WE DO COMMAND 
SHALIv BE KEPT AND CAR- 
RIED OUT NOTWITHSTAND- 
ING ANOTHER PROVISION 
OF OURS WHICH WE COM- 
MANDED TO BE GIVEN RE- 
SPECTING (cerca) the 
said limits [ . ] in the 
City of Caragoqa on 
the eighth day of the 
MONTH OF September of 

THE PAST YEAR OF ONE 
THOUSAND FIVE HUNDRED 
AND SIXTY THREE. BE- 
CAUSE IT IS OUR WILIv 
THAT THERE SHAIvL NOT 
BE KEPT AND CARRIED OUT 
BUT THIS WHICH WE NOW 
GIVE'^ 



26 

The conclusions are obvious, first, — that the Hon- 
duranean territory which was annexed to Guatemala 
under the 1563 cedilla was restored to Honduras by 
the 1564 cedilla; second, — that this restoration was 
made not only by that portion of the 1564 cedilla which 
restated the old boundaries but also by the express 
repeal of the 1563 rescript "respecting the said limits 
[given] in the city of ^aragoga on the 8th day of the 
month of September of the past year of 1563, because 
it is our will that there shall not be kept and carried 
out, but this that we now give". The repeal of the 
1563 rescript could not be stated in simpler language 
or clearer form. 

The representative of Guatemala has attempted to 
reconcile the two cedillas. He lays stress on the lan- 
guage of the later cedida, that the boundaries of Hon- 
duras shall be those "which until now it has had". 
Such language was purposely and properly used, 
because the cedula of 1564 was issued before that of 
1563 had been put into effect. In those days there 
were but two fleets a year which sailed for America 
from Spain, — the fleet for Mexico (which included 
Honduras) leaving in April and that for Panama, in 
August. (Haring, Trade and Navigation betzueen 
Spain and the Indies, pp. 90, 207.) When the cedula 
of September 8, 1563, was issued, both fleets for that 
year had sailed. Accordingly, the cedula could not 
have left for America except by the fleets of the next 
year. Hence the cedula of May 17, 1564, either went 
out in the same mails as the cedula of 1563 which it 



27 

repealed, with the Mexican fleet, or overtook the cedula 
by the Panama fleet due to sail in September. 

Thus it cannot be doubted that the King in Council 
in the 1564 cedula intentionally and necessarily re- 
pealed the 1563 cedula in the language actually em- 
ployed. 

There can also be no doubt that the 1563 cedida 
was overtaken by the later cedula and never went into 
effect. In those days many months were required 
for royal decrees to be put into operation. For in- 
stance, the transfer of the Audiencia from Guatemala 
to Panama decreed by the other cedula of 1563 was 
not actually effected until 1565; and the restoration of 
the Audiencia of Guatemala, ordered by the cedula of 
1568, was not realized until 1570. (Juarros, op. cit., 
vol. II, pp. 49-50.) 

Yet another attempt is made on behalf of Guate- 
mala to reconcile the two cedulas. The explanation is 
offered that the line fixed by the cedida of 1563 was 
uncertain and that the 1564 cedula merely made it 
definite. To this two answers may be made : 

(i) The line was not uncertain, as has been dem- 
onstrated by the Guatemalan engineers in the present 
proceedings. They drew without difinculty the Fon- 
seca-Ulua line of the-J563 cedula on the map which 
was filed with the Honorable Mediator in May, 1918. 
Evidently the Guatemalan delegation then found no 
need for clarification and definition; for the 1564 
cedula had not yet been produced by the representative 
of Honduras. 



28 

(ii) If the explanation offered by the representa- 
tive of Guatemala were sound, the cedilla of 1564 
would complicate the matter instead of simplifying it. 
The limits prescribed in the two cedillas are quite dif- 
ferent. In the 1 564 cedula it was provided : 

". . . the said governancy of Guate- 
mala shall have for limits a district from the 
Bay of Fonseca inclusive to the province of 
Honduras exclusive by straight line . . ." 

Reference to the maps of the time (for example 
that filed as Exh. XVIII, with H. Note of August 27, 
1918) shows that Honduras was conceived as stretch- 
ing along the entire North coast from Nicaragua to 
Golfo Dulce and Yucatan. If Honduras was to retain 
such territory, then a straight line connecting the Bay 
of Fonseca with the province would be understandable. 
Such a line would be perpendicular to the southern 
boundary of Honduras along the Sierra Madre. If on 
the other hand, as is suggested on behalf of Guatemala, 
a line was to be drawn due north from the Bay of 
Fonseca, it would nowhere strike the Ulua River, 
which is much to the west, and there would be a de- 
cided break in the periphery of Honduras. 

(a) The contemporary evidence confirms this construction. 

(i) Testimony of official Spanish geographers and 

Jiisforians. 

In 1574 Juan Lopez de Velasco completed his 
Geografia y Descripcion Universal de las Indias, 



29 

which was the fruit of his appointment by FeHpe II 
in 1571 to the post of Cosmographer-Chronicler. In 
this remarkable work, which was based on the official 
archives and published after examination and license 
of the Consejo de Indias, Velasco assigned Guatemala 
and Honduras clearly defined frontiers. (Ed. Zara- 
goza, pp. 301-306.) 

Substantially the same boundaries for the two 
Provinces are given by King Felipe's Chief Chronicler, 
Antonio de Herrera, in his Descripcion de las Indias, 
published in Madrid, 1601 (pp. 32-36). In fact 
Herrera copied almost verbatim that anonymous man- 
uscript Summary of Velasco's Descripcion, which was 
re-printed in 1871 by order of the Spanish Govern- 
ment in the Coleccion de Documentos Ineditos de 
Indias (vol. XV, p. 409 et seq.) and with whose maps 
Herrera illustrated his own work. (Lopez de Velasco, 
ed. Zaragoza, p. x. ) An extract from this Summary is 
reproduced as Honduranean Exhibit IV, (See H. 
Note of Aug. 27, 1918, p. 26.) 

If these descriptions of the provinces of Guatemala 
and Honduras are read, having in hand Herrera's 
maps of the Audiencia of Guatemala (produced in evi- 
dence by Honduras), it vv^ill be perceived that Guate- 
mala Province lay along the South Sea entirely south 
of the Sierra Madre, a strip with an average width of 
25 to 30 leagues ; and that its common boundary with 
Honduras ran from the sources of the River Chulu- 



30 

teca to the alcahi'ia mayor of Verapaz; that Verapaz 
lay to the west of Golfo Dulce and inland; and that 
Honduras extended, north to south, from the North 
Sea to the Sierra Madre, and from east to west, 
ran from the Chuluteca River to Golfo Dulce and 
then, skirting Golfo Dulce and bounding with Verapaz, 
continued up to its frontier with Yucatan, in 16Mi° 
latitude. Neither the Bay of Fonseca nor the Ulua 
River were boundaries between Guatemala and Hon- 
duras in the period of these descriptions (1571-1601). 
Had the ccdula of 1563 been in force, these descrip- 
tions of the royal cosmographer, Velasco, and the 
chronicler, Herrera, based as they were on official 
sources of information and licensed by the highest 
colonial authority, could not have failed to reflect them. 

(ii) Adjuinistrative Construction. 

1576. — Under date of March 8, 1576, Licentiate 
Diego Garcia de Palacio, one of the oidores (judges) 
of the Audiencia of Guatemala, re-established by 
cedida of June 28, 1568, made a report to King Felipe 
n of a tour of Honduras and Chicjuimula. We quote 
the following extract (Fernandez, Coleccion de Docii- 
mentos para la Historia de Costa Rica, vol. I, pp. 1, 2, 
44-45, 47-48, 50; H. Exh. No. 13, item 21) : 

"Catholic Royal Majesty — By your cedulas 
and provisions Viceroys, Presidents and Gov- 
ernors of these parts are ordered and enjoined 
to make detailed and true relation of the posi- 
tion of lands, Indians, languages, customs, 



31 

rivers, mountains and rarities and things of 
their districts, account whereof should be given 
to your Majesty and thus recorded ... By 
other cedulas and provisions your Majesty Hke- 
wise orders that an Oidor in his turn shall visit 
the provinces of his district for the good, con- 
servation and policing of these natives, and to 
relieve them of the injustices and vexations 
from which they suffer, and to compose and do 
justice in such other things as among them may 
offer. In performance whereof this Your 
Royal Audiencia of Guatemala nominated me 
for said visit and designated certain provinces 
in its district, where I saw and learned things 
which being rare and noteworthy have impelled 
me to report to Your Majesty . . . 

"From this place [Mitla] commences the 
province and corregimiento of the town of Chi- 
quimula de la Sierra . . . Towards the part 
that leads from this place to Gracias a Dios 
in Honduras, the Indians are Chontales . . . 
"Near said place [Mitla], as one goes to 
the city of San Pedro, in the first place of the 
province of Honduras, which is called Copan, 
there are some ruins and vestiges of a large 
population and of superb buildings [Palacio 
then describes the ruins of Copan] . . ." 

If the line of the "OTua River-Fonseca Bay of the 
] 563 cedula had been in force, when Palacio reported 
in 1576, he would not have mentioned Gracias a Dios, 
San Pedro Sula and Copan as situated in the Province 
of Honduras. 



32 

1582. — Alonso de Contreras Guevara, Governor of 
the Province of Honduras, in compliance with a ccdida 
of the King and his Royal Council of the Indies, com- 
piled a list and description of the cities and towns with- 
in the province, under date of April 20, 1582. In re- 
ferring to Gracias a Dios, the Governor enumerated, 
among other towns, the following which are of special 
interest in the present Mediation: Tencoa (now Santa 
Barbara), Ocotepeque, Camasca, Chapulco (on the 
Motagua River), Quesalica and Copan. He includes 
San Pedro Sula; and in connection with San Juan de 
Puerto Cavallos, he mentions Masca, Amatique and 
Gama. (H. Note of June 22, 1918, p. 10; H. Misc. 
Exhs.) 

All of these settlements are West of the Ulua 
River. Governor Contreras Guevara would not have 
included them in his report had the cedilla of 1563 
been in force. 

1603. — In a report to the King, the Aiidiencia of 
Guatemala stated that in view of His Majesty's order 
of February 7, 1602, that no expenditures be made 
from the Royal Exchequer except in cases provided 
by the Ordenanza and therefore that "such aid as may 
be given to Amaticjue shall be with the people of that 
land, whom the Governor shall have under discipline 
and training", it (the Aiidiencia) "has already ordered 
the Governor of Honduras to proceed accordingly". 
(H. Misc. Exhs.) 

This report shows that the highest authority in 
the Captaincy General (namely the President and 
oidores composing the Audiencia) regarded Amatique 



83 

as within Honduras. This port was of course far to 
the West of the Ulua-Fonseca line.* 

1646. — In this year Juan Diez de la Calle, second 
official of the Secretariat of the Council of Indies pub- 
lished his Memorial y Noticias Sacras, y Reales del 
Imperio de Indias Occidentales. He had the necessary 
license to print of the Council of Indies and was re- 
warded by the King with a special compensation of 600 
ducats. In this work, which was a summary of the 
administrative organization of the colonies, historically 
and currently considered, Calle makes no mention of 
the cedula of September 8, 1563, or of the Ulua-Fonseca 
line. On the contrary he recites as lying within the 
Province of Honduras, the city of Gracias a Dios, the 
villa of San Pedro, Tencoa and the Port of Santo 
T6mas de Castilla. In his account of the Province of 
Guatemala he mentions no city or town lying between 
the Ulua and Motagua Rivers. 

*In this connection we note that a controversy arose between the 
President of the Andiencia and the Governor and local authorities of the 
Province of Honduras over the proposed closing of Cavallos as a port 
of entry for commerce from Spain and the establishment of such port 
at Amatique or Sto. Tomas de Castilla. (See documents of years 1583, 
1606 and 1608; H. Note, June 22, 1918, pp. 10-11.) This proposal had its 
origin in the desire of the authorities at Santiago de Guatemala to have 
a port more convenient for Guatemala than Cavallos ; and in the sup- 
position that Amatique would be less exposed to pii'atical assaults. In 
March, 1604 the President, Alonso Criado de Castilla, caused Amaticiue 
Bay to be sun^eyed; and by the beginning of 1605 had effected the 
transfer of the inhabitants of Cavallos to the new port of Sto. Tomas 
de Castilla, which was located near the sites of the early settlements 
of San Gil de Buena Vista and Amatique since fallen into decay. How- 
ever, Sto. Tomas did not prosper and was abandoned in favor of Puerto 
Dulce, called Castillo de San Felipe de Lara, after its fortification was 
finished by the oidor Lara'jrMogrobejo while acting as president of the 
audiencia (164S-16S4) . Juarros, op. cit., vol. H, p. 166, vol. I, pp. 263-264; 
Milla, Historia de la America Central, vol. II, pp. 224-226; Bancroft, 
History of Central America, vol. II, pp. 649-651.) In this controversy 
as to changing the port of entry, no question was raised as to the terri- 
torial extent of Honduras, but only as to the authority of the President 
of the Andiencia to close one port of entry and open and fortify another, 
both admittedly lying in the Province of Honduras. (H. Exh. XXV, 
no. 2.) 



34 



Thus for a period of eighty years following upon 
the signature of the cedula of September 8, 1563, all 
the contemporary evidence confirms our construction 
that it was repealed by the cedula of May 17, 1564; 
and also sustains our contention that the Ulua-Fonseca 
line was never put into effect. 

(iii) Maps. 

It is significant that Guatemala has not produced 
a single map contemporaneous with the cedida of 1563 
(or for that matter of any other date during the entire 
colonial period), of either an official or private charac- 
ter, which gives the Ulua-Fonseca line as the boundary 
between the provinces of Guatemala and Honduras. 
On the other hand Honduras has submitted numerous 
maps of both classes, all of which indicate a frontier 
far to the west of the Ulua River, — either the Motagua 
River or Golfo Dulce or Yucatan. 

(b) The subsequent history of Honduras and Guatemala con- 
firms this construction. 

It would be strange indeed, in view of the history 
of the western part of Honduras since 1563, if the 
ccdida of September 8, 1563, had not been repealed. 
Honduras has been in exclusive and uninterrupted 
possession of the territory now claimed since that year, 
and up to the present day — a period of three and a half 
centuries. During the entire colonial epoch the affairs 
of the district now claimed by Guatemala were admin- 
istered by Honduranean officials. 



35 

Since the year of independence, Guatemala has not 
only never exercised jurisdiction over the territory 
now claimed under the cedula of 1563, but never until 
during the course of the present proceeding has the 
existence of the claim even been intimated, by diplo- 
matic note or otherwise. Guatemala did not mention 
the cedula of 1563 during the negotiations following 
the treaties of either 1845 or 1895 with Honduras. 
Nor did Guatemala bring forward the cedula in the 
course of its dispute with Mexico over Chiapas, not- 
withstanding the fact that the cedula expressly granted 
to Guatemala jurisdiction of that entire province. (G. 
Note, May 24, 1918, p. 27.) See Larrainzar, Chiapas 
y Soconusco, passim. 

The historical facts are so conclusive that our 
American common law judges in a litigation would 
apply the fiction of the lost grant, which they frequently 
used to support the doctrine of prescription. If a 
person had been in uninterrupted possession of land 
for twenty years, it was held that he was presumed to 
have had a paper title thereto and that it had been lost. 
There is no doubt that if the Honduranean case de- 
pended on it, the present Mediation would be a proper 
instance for application of the doctrine of prescrip- 
tion which has often governed territorial disputes be- 
tween our own colonies. 

Rhode Island v. Massachusetts, 4 How. 591, 

639; 
Virginia v. Tennessee, 148 U. S. 503, 522 ; 
Maryland v. West Virginia, 217 U. S. 1, 
41-43. 



36 



(3) The cedula of September 8, 1563, even assuming 
it were not repealed by that of May 8, 1564, is inconsistent 
with the cedulas which extended to the Captaincy-General 
of Guatemala the system of intendencias implanted in New 
Spain by the ordinance of intendentes of December 4, 1786. 

In demonstrating that under the principle of the 
//// possidcfis of 1821, Honduras had possession 
at least up to the line of Cerro Brujo-Caulotes- 
Motagua River, we shall have occasion to indicate 
{ijifra, p. 57) how upon the extension to Central 
America of the system of intendencias from Mexico, 
there implanted by the Ordenansa de Intendentes of 
December 4, 1786, the territorial organization of the 
Intendencia of Honduras was definitively fixed by the 
cedula of July 24, 1791, which declared it to include 
the alcaldia mayor of Tegucigalpa, "with all the terri- 
tory of its Bishopric except the port and military post 
of Omoa" ; and how Omoa was restored to the direct 
control of the Governor-Intendente of Honduras by 
the cedida of October 16, 1818. 

These cedulas of July 24, 1791, and October 16, 
1818, are inconsistent with the continued existence of 
the 1563 cedula even if we admitted that the Ulua- 
Fonseca line named therein had hitherto constituted the 
boundary between Honduras and Guatemala. The 
1791 cedula in providing that the intendencia of Hon- 
duras, should include "all the territory of its Bishopric 
except the port and post of Omoa", indicates that the 
intendencia must have extended west of the Ulua River 
and beyond Omoa; otherwise the exception of Omoa 



37 

made in the cedula would have been meaningless sur- 
plusage. Similarly the cedula of 1818, in placing Omoa 
within the jurisdiction of the intendencia of Honduras, 
would not have added the phrase "in the manner in 
which it had been prior to its aggregation to Guate- 
mala." 

The cedula of July 24, 1791, provided that the 
intendencia of Honduras should include all the terri- 
tory of the Bishopric of Honduras (except the port and 
post of Omoa). Honduras has offered abundant evi- 
dence, which will be analyzed hereinafter, that the ter- 
ritory of the Bishopric extended at least as far west as 
the Motagua River and the Copan Valley and that 
within such territory the bishops of Honduras and 
their subordinates exercised spiritual jurisdiction. To 
the extent that ecclesiastical territory and jurisdiction 
are thus shown, we have additional proof of the abro- 
gation of the cedula of 1563. 

Guatemala was not erected into an intendencia 
until 1805, by a Royal Order of June 25th of that year, 
being formed out of the province of that name, without 
any change in its territorial extent (references infra, 
p. 59). In this order there is not the slightest sug- 
gestion that the jurisdiction of the intendencia of Gua- 
temala extended to the line of the Ulua River-Fonseca 
Bay. If there had been, Guatemala would have men- 
tioned the fact in the Instructions to her boundary com- 
missioner prepared in 1844 in anticipation of the treaty 
with Honduras of the following year. Quite to the 
contrary, in these Instructions the Guatemalan govern- 



38 

nicnt was content to indicate as the boundary line with 
Honduras the Copan Valley and the Motagua River 
(H. Exh. XVII A, p. 3, sec. 4); and to direct her 
boundary commissioner to ascertain the extent of Gua- 
temalan territory by the negative process of inquiring 
as to the limit of Hondurancan jurisdiction. 

(4) The Constitutions of Guatemala of 1825 and 1845 
are inconsistent with the present Guatemalan claim to the 
line of Fonseca Bay and the Ulua River. 

The Constitution of the Central American Fed- 
eration promulgated November 22, 1824, after stating 
(Tit. I, sec. 2, art. 5) "The territory of the republic is 
the same w4iich the kingdom of Guatemala previously 
comprehended . . ."; and (art. 6) "that the Fed- 
eration is composed of five states, Guatemala, Hondu- 
ras, Costa Rica, San Salvador and Nicaragua", pro- 
vided: "Art. 7. — The boundaries of the States shall be 
demarcated by a constitutional law after the necessary 
data are obtained". 

No constitutional law having been enacted by the 
Federation, Honduras and Guatemala were free to fix 
their respective boundaries. The former expressly de- 
clared that its territory was all that had always corre- 
sponded to the ancient bishopric and colonial province. 
Constitutions of Honduras of December 11, 1825, and 
of January 11, 1839 (ch. 1, art. 4); and of February 
4, 1848, and September 25, 1865 (ch. 2, art. 4). 

Under these circumstances the Constitutions of 
Guatemala of 1825 and 1845 are significant. Section 



39 

3 of Art. 35 of the Guatemalan Constitution of Octo- 
ber 11, 1825, in describing the national territory, in- 
cluded to the north "all the towns of the partido of 
Chiquimula with Izabal . . ." 

All mention of the vast stretch now claimed was 
omitted. It was then in possession of and claimed by 
Honduras. The same comment may be made of the 
Guatemala Constitution of September 16, 1845, which 
states in Title 1, as follows: 

"Art. 5. The State comprehends the ancient 
departments of Verapaz, Chiquimula, Sacate- 
pequez and Guatemala, and also the departments 
of Los Altos, reincorporated by the decree of 
the Constituent Assembly of August 13, 1840. 

"Art. 6. In the present Constitution, the 
provision contained in that of 1825 concerning 
Sonsonate and extending to Soconusco shall be 
deemed reproduced, in order that prescription 
can at no time be alleged." 

If at the time there had been any pretension to the 
western part of Honduras, an allegation to bar the 
running of prescription would have been inserted simi- 
lar to that with reference to Sonsonate and Soconusco 
whose territory was in dispute respectively with Salva- 
dor and Mexico. 

As a matter of international law, one state cannot 
acquire territorial jurisdiction as against another by 
declaration in the organic law, except indeed as a phase 
of prescription. The Constitution of Guatemala of 
1845 furnishes an example, for subsequently Sonsonate 



40 

adhered to San Salvador and Soconusco to Mexico. A 
constitntion cannot liave the effect internationally of 
creating rights and obligations as between sovereign 
states ; but it establishes the corporate limits of a state 
and by defining them declares to the world that beyond 
them the national jurisdiction does not extend. (Award 
of King Alfonso, Honduras-Nicaragua Arbitration, in 
Ramirez F. Fontecha, Arhitraje entre Honduras y 
Nicaragua, p. 117.) If the district of Gracias and the 
rest of Honduras west of the Ulua-Fonseca line ever 
did belong to Guatemala, claim thereto was abandoned 
by Guatemala in 1825 and 1845. 

(5) The cedula of 1563 is of no effect because incon- 
sistent with the treaties between Honduras and Guatemala 
of May 12, 1839, August 14, 1839, March 1, 1895 and August 
1, 1914. 

It is hardly necessary to cjuote authorities for the 
proposition that a treaty supersedes all previous incon- 
sistent stipulations between the same parties. (Cran- 
dall, Treaties, their Making and Enforcement (2nd 
ed.),p. 402.) 

Article 5 of the treaty of May 12, 1839, acknowl- 
edges that San Salvador and Honduras are neighbor- 
ing Republics. But if the territory of Guatemala ex- 
tended to the line of Fonseca Bay and the Ulua River, 
Honduras could not touch San Salvador at any point. 

The treaty of August 14, 1839, provides in article 
1 for a conference of the Central American Republics 
at some point in Honduras, stating that "it is advisable 
that said meeting be held in Los Llanos de Santa Rosa 
de Gracias". Los Llanos was the name in colonial 



41 

times for a district near Copan in the Copan valley, 
which in turn lay in the sub-delegation of Gracias a 
Dios of the colonial Province of Honduras. The mod- 
ern town of Santa Rosa to which the treaty refers is in 
the present Honduranean department of Copan. 
Thus we have recognition by Guatemala in this second 
treaty of 1839 that the Copan region was in Honduras. 
Such recognition is wholly inconsistent with the claim 
to that territory now put forward by Guatemala. 

The treaty of March 1, 1895, had provided for a 
Mixed Boundary Commission to meet at Ocotepeque, 
because it lay upon the frontier (art. 2). The Mixed 
Boundary Commission appointed pursuant to this treaty 
by the two Republics agreed upon Cerro Brujo and 
Cerro Obscuro as two points in the boundary line ; and 
their agreement was confirmed by article 16 of the 
treaty of 1914. Ocotepeque, Cerro Brujo and Cerro 
Obscuro are many miles west of the line of Fonseca 
Bay and Ulua River. 



The claim to the Fonseca-Ulua line based on the 
cedilla of September 8, 1563, which has been put for- 
ward on behalf of Guatemala has been treated respect- 
fully^ as befits any uttef^ces of her distinguished rep- 
resentative. It is because of his high character and 
that of the State which he represents, that we have been 
at pains to present a detailed answer. We submit that 
the cedula of 1563 upon which Guatemala relies, never 



42 

took effect; that if it did, it was abrogated by the ccdiila 
of 1564; that it is inconsistent with numerous later 
cedillas of the Kings of Spain and wath constitutional 
provisions and treaty stipulations of the Republics of 
Honduras and Guatemala ; and that all of the historical 
evidence both contemporary with the cedida of 1563 
and subsequent thereto confirms these conclusions. 



II. 

THE UTI POSSIDETIS OF 1821 IS THE CONTROLLING 
PRINCIPLE. 

A detailed geographical delimitation of the Prov- 
inces of Honduras and Guatemala is not to be found 
in any single royal cedula. On the contrary such de- 
limitation can only be attained through an examination 
of a series of royal decrees which stretch over the 
entire colonial period and recjuire interpretation in the 
light of the acts of jurisdiction of the officials of those 
entities and of the general history of the Captaincy 
General. In this direction much progress has been 
made in this Mediation by the adoption on behalf of 
both High Parties of a single governing principle — the 
uti possidetis of 1821. 

(1) The principle is well settled in American interna- 
tional law and is founded on sound political and social 
reasons. 

The principle is that the boundary line of two con- 
tiguous states should be the limit of the colonial admin- 
istration in the corresponding provinces at the time of 



43 

independence. In South America independence was 
generally attained in 1810, and the principle as there 
applied, is referred to as the uti possidetis of 1810. 
Since independence was not achieved in Central Amer- 
ica until eleven years later, it is there referred to as the 
uti possidetis of 1821. 

The principle has been commonly adopted in the 
many territorial disputes between the South American 
Republics. (Alvarez, Droit International Americain, 
pp. 65-67; Weiss, Revue Generate de Droit Interna- 
tional Public, vol. XVII, p. 128.) It was even applied 
in a boundary dispute between Argentine and the 
Portuguese Republic of Brazil in 1889. (Moore, In- 
ternational Arbitrations, vol. II, pp. 1969, 1983.) It 
was followed in the celebrated arbitration between 
Argentina and Chile (Alvarez, Revue Generate de 
Droit International Public, vol. X, p. 651) ; and in the 
controversy between Nicaragua and Honduras, decided 
by King Alfonso on December 23, 1906. (Ramirez F. 
Fontecha, op. cit., p. 114.) 

Two states, hneal descendants of two separate colo- 
nial provinces, under the same king, naturally took the 
limits which they previously had as provinces. The 
provinces were administrative districts whose limits 
were based upon geographical, commercial and ethno- 
logical considerations. Within each administrative 
district peoples developed with common economic and 
social interests and with common traditions. The prin- 
ciple of the liti possidetis thus has a moral as well as a 
legal basis. It regards the natural feelings of a people 
who have lived, fought and died together ; and common 



44 

ties are not broken asunder. (Fiore, Revue Generale 
de Droit Intcniational Public, vol. XVII, pp. 251-252.) 
In the present case Guatemala and Honduras were 
separate provinces from the earliest years of the Cap- 
taincy General, each with a separate personnel of pohti- 
cal and ecclesiastical officials. The geographical situ- 
ation of the two peoples was also such that each had 
independent and sometimes conflicting interests. The 
dispute, already discussed (p. ZZ, n.), over Cavallos 
and Sto. Tomas de Castilla as ports of entry, was an 
early instance. Guatemala herself introduced in this 
Mediation two documents, dating around the close of 
the colonial epoch, which strikingly expressed the di- 
vergent interests between Honduraneans and Guate- 
malans. See the G. Exhs. 2 and 7; and the comments 
thereon in the H. Note of June 29, 1918, pp. 5-8. 
It was natural that the two peoples should upon emanci- 
pation become separate and sovereign states. 

(2) The principle has been expressly adopted in Art. 
6 of the 1914 treaty between Guatemala and Honduras. 

Article 6 provides : 

'Tn order to take the necessary resolutions, 
the Contracting Governments, after the Mixed 
Commission has presented the result of its 
labors, shall take into account : the observations 
and studies of the said Commission; the lines 
demarcated in public documents not contra- 
dicted by others of like class and of greater 
force, giving to each the value which corre- 
sponds thereto, according to its antiquity and 
juridit efficacy; the extent of the territory 



45 

zvhich constituted the ancient Provinces of Hon- 
duras and Guatemala at the date of their inde- 
pendence; the provisions of the Real Ordenansa 
de Intendentes zvhich then governed, and, in 
general, all the documents, maps, plans, etc., 
which may lead to clearing up the truth ; giving 
preference to those which, by their nature, 
should have greater force by reason of an- 
tiquity, because they are clearer, just and im- 
partial, or for any other sound motive, accord- 
ing to the principles of justice. 

"To possession only should be given value 
in so far as it is just, legitimate and well 
founded, in accordance with the general prin- 
ciples of law and the rules of justice which the 
Law of Nations has sanctioned on the subject". 

For convenience, the passages in the notes filed be- 
fore the Honorable Mediator, in which assent is given 
to this general doctrine follow: G. Memo., May 24, 
1918, p. 2; of June 25, pp. 3, 14, 17, 32, 34; of July 25, 
p. 58; the H. Memo., June 22, p. 2. 

(3) The principle has been expressly defined in such 
terms by the representative of Guatemala in the present 
Mediation as to involve a waiver of any prescriptive rights 
to territory not covered by the uti possidetis of 1821 and oc- 
cupied by Guatemala since that year. 

In Guatemala's memorandum of May 24 is the 
following (p. 2) : 

"In order to give greater clarity to this ex- 
position I shall first state the bases upon which 
the investigation and determination of our 
rights must rest. 

"Guatemala and Honduras must make the 
demarcation of their boundaries taking the 



46 

same limits which they had during the colonial 
government according to the contractual law 
in force. The principle followed in the latter 
has been expressed in America, as is well known, 
in the improper formula of iiti possidetis 
up to the time of the independence. This 
principle in practice has divided the opinions 
of publicists, inasmuch as while some maintain 
that in solving the boundary questions by the 
itfi possidetis they must consider only the fact 
of the possession without entering into the 
questions of the title . . . These opinions 
have been expressed in formulae still more im- 
proper, the uti possidetis juris and ttti possidetis 
de facto. 

"In the case of Guatemala and Honduras 
there is happily no room even to discuss which 
of the two opinions must prevail; the signers 
of the treaty of 1914 did not take into considera- 
tion vague formulae and confusing expressions, 
and with all possible clearness agreed that . . . 
the Government should take into account the 
'comprehension of the territory which consti- 
tuted the old provinces of Guatemala and Hon- 
duras to the date of their independence', indicat- 
ing that possession shall have value only in so 
far as it is just, legitimate and well founded 
according to the general principle of law and 
the rules of justice which have been sanctioned 
by the law of nations upon the subject. Articles 
5 and 6." 

Again, in the Guatemalan answer presented July 
25, 1918, reference is made (p. IS) to "article 6 of 
the treaty which establishes the uti possidetis juris of 
1821." See also p. 20 of this Note; and the Guatemalan 



47 

Note of June 22, pp. 22, 35. In the final note filed 
on September 21 the representative of Guatemala re- 
iterated the strict principle of the uti possidetis juris 
of 1821 (pp. 4, 6, 10). We draw attention especially 
to the following paragraph (p. 10) : 

"I find it strange, very strange, that sehor 
Bonilla should cite in support of his contention 
treaties . . . subsequent to 1821, inasmuch 
as the boundary treaty of 1914 which he re- 
spects and accepts, stipulates that there shall be 
taken into consideration for demarcating the 
boundary line, documents previous to that year 
only, which is designed and marked out as a 
fundamental historical epoch to establish the 
territorial rights of each state and thus leaves 
without value everything done subsequent to 
the aforementioned date." 

Thus Guatemala insists that the principle is uti pos- 
sidetis juris rather than uti possidetis de facto; that 
the question is not merely of the territory possessed in 
1821 by the Province of Guatemala and Honduras, re- 
spectively, but that which they had a right to possess 
(all possession subsequent to 1821 being laid aside as 
immaterial) ; and that actual possession not in accord 
with the legal title as of 1821 must be disregarded. The 
representative of Honduras has been content, in gen- 
eral, to accept the principle as thus defined by the other 
side (H. Note, June 22, 1918, p. 2) for the evidence 
which Honduras presents shows that actual possession 
in 1821 was in accord with the true legal title. 

The matter is not without importance since the ex- 



48 

tent of present possession in the coast region west of 
the Motagua River and along a portion of the river, 
does not accord with the iiti possidetis juris of 1821. 
If the rule is strictly applied, as insisted by Guatemala, 
and as assented by Honduras, Guatemala might fairly 
be called upon to surrender possession of the peninsula 
of Cape Three Points and the whole littoral west of 
the Motagua River as far as British Honduras. As 
to whether Honduras has title to the coast region west 
of the river, under the principle as defined by Guate- 
mala, will be discussed hereinafter (point VH). 

(4) Such waiver by Guatemala is proper, because there 
has been no change of legal status between the parties 
since 1821. 

It is proper that so far as possession may have been 
acquired by Guatemala since 1821, outside of the limits 
of her territory in that year, it should be renounced as 
having no prescriptive effect. This conclusion is sup- 
ported by the rules of international law governing the 
non-prescription of litigious territory and the preserva- 
tion therein of the statu quo (Alvarez, Revue Generale 
de Droit International Public, vol. X, pp. 654-662) ; 
the boundary region between Guatemala and Honduras 
having clearly been in litigation since boundary troubles 
led to the signature of the treaties of 1845, 1895 and 
1914. 

The waiver is also in order because the three boun- 
dary treaties mentioned and also the two of 1839 (p. 
40, supra), have in effect preserved the status quo, 
mite. Even the definition of the Cerro Brujo and 



49 

Cerro Obscuro therein stipulated coincided in point of 
fact with the uti possidetis juris of 1821. 

The constitutional history of the parties also con- 
firms this conclusion. The Constitution of Central 
America of November 22, 1824, provided that the terri- 
tory of the federation was "the same which the nation 
of the Kingdom of Guatemala comprehended, except- 
ing for the present the province of Chiapas" (Tit. II, 
sec. 2, art. 5); that the federation was composed of 
five states, among them Guatemala and Honduras (art. 
6) ; and that the territory of each of the five states 
would be demarcated by a Federal law after the essen- 
tial data were obtained (art. 7). But no such law was 
passed during the life of the Central American Federa- 
tion.* 

*Although G. A. Thompson states in his Narrative of an Official 
Visit to Guatemala (London, 1829) p. 450, that "a new division of terri- 
tories of these states has been made so as to give each a due portion of 
the seacoast", no statute to this effect was actually passed by the Federal 
Congress. This is shown by the fact that the project of a Federal con- 
stitution adopted by the Congress on February 13, 1835, repeats the 
language of Article 7 of the previous constitution to the effect that a 
law would be passed. Alejandro Marure, in his Bosque jo de Revjlit- 
ciones de Centro America, published 1837, states (pp. 99-100) : "With 
reference to the demarcation of territory, no change whatsoever was 
made but rather it was provided that which existed in the epoch prior 
to independence should not be altered" (citing an order of Assembly of 
March 15, 1824) ; the Instructions of the Guatemalan Government to its 
commissioners in 1844, declare that the special law fixing the boundaries 
had not yet been passed (H. Exh. XVII A, sec. 1) : and the Report on 
the State of Affairs of Nicaragua by Francisco Castellon, envoy of Hon- 
duras and Nicaragua to Great Britain, is to the same effect (U. S. Doc, 
Ser. 579, doc. 75, p. 291). In this report Castellon referred to a ciecree 
passed bj' the Federal Congress on Dec. 9, 1825, article first of which 
provided: "For the present a^rid until the limits of each State shall liave 
been defined ordered by the 7th article of the constitution, the dis- 
trict of Nicoya shall continue separated from the State of Nicaragua, 
and annexed to that of Costa Rica." Castellon stated that Costa Rica 
had based her claim to Nicoya partly on this decree ; but that the decree 
was not a valid basis, for the reason, among others, "that the Congress 
having not fixed the limits by a law, before the dissolution of the Union, 
the annexation of the said district of Nicaragua was considered in the 
estimation of all of the States as provisional, and therefore Costa Rica 
cannot claim any right to the said district." 



50 

The early constitutions of Honduras preserved the 
territory of the intcndcncia. For that of December 11, 
1825, ch. 1, art. 4, provided "that its territory compre- 
hends all that corresponds and has always corresponded 
to the Bishopric of Honduras" ; w^hile that of January 
11, 1839, ch. 2, art. 4, and that of February 4, 1848, 
ch. 2, art. 4, proclaimed that "The State of Honduras 
comprises all the territory which under the Spanish 
government was known as the province of that name". 
To the same effect is ch. 2, art. 5, of the constitution 
of September 28, 1865 ; and also ch. 2, art. 4, of the 
constitution of December 23, 1873. 

The early constitutions of Guatemala are also cor- 
roborative. The constitution of October 11, 1825 (sec. 
3, art. 35), and that of September 16, 1845 (tit. 1, art. 
5) enumerate the various departments of the State, 
none of which includes Gracias a Dios, the Copan Val- 
ley, Tencoa or San Pedro Sula. Thus there can be no 
doubt that present possession differing from the line 
of 1821 cannot be a valid basis of claim. 

(5) The determination of the line of the uti possidetis 
juris of 1821 thus becomes a necessary step precedent to the 
suggestion hy the Honorable Mediator of a compromise 
boundary which will harmonize with the present day situ- 
ation of the parties. 

The Guatemalan representative has of course been 
moved to insist upon the strict uti possidetis juris 
through his mistaken confidence in the legal existence 
of the cedula of 1563; and through the favorable posi- 



51 

tion in which this premise would place his country in ob- 
taining a compromise line further east even than the 
present day line of Guatemalan possession. 

The Honduranean representative has thus been 
justified in submitting his country's evidence and argu- 
ments to show that under the same criterion of the uti 
possidetis juris of 1821, the legal boundary in the coast 
region extended to Yucatan. However, in so doing 
he has at the same time intimated (H. Note of August 
27, 1918, pp. 37-38) that his Government was prepared 
to accept the Honorable Mediator's suggestions as to 
a compromise line based on the modern possession of 
the two countries. The position herein taken by coun- 
sel of Honduras as to the uti possidetis juris should 
also be regarded as in harmony with this attitude. 
Honduras and her counsel are confident that once the 
Honorable Mediator has determined the legal line, he 
will be able to suggest a compromise boundary which 
the two countries can accept. 

(6) In its application to the present dispute the princi- 
ple of the uti possidetis of 1821 is an historical reconstruction 
of the limits of political and ecclesiastical jurisdiction in 
Honduras and Guatemala at the close of the colonial period; 
every variety of evidence being admissible under the treaty 
of 1914 to realize such reconstruction. 

Article 13 of the^Teaty of July 19, 1845, contains 
the original stipulation whereby the high parties to this 
Mediation proposed to settle their boundary. Article 
13 provided: 

"That the States of Honduras and Guate- 
mala recognise as their common boundary that 



52 

laid dozvn for the Diocese of each, in the Royal 
Ordinance of hitcndcntes of 1786, and in order 
to fix the dividing line in a manner that cannot 
be doubted the two States will appoint their 
Commissioners . . ." 

The Boundary Commissioners under the treaty of 
1845 were unable to proceed with their work of demar- 
cation, because they could not agree as to what was 
proper evidence admissible to establish the limits of the 
two dioceses. More particularly, the Guatemalan Com- 
missioner refused to consider land titles as admissible 
evidence (they of course were not ecclesiastical docu- 
ments), notwithstanding that his own Instructions had 
stated that he should take into consideration haciendas 
(estates) which mark the frontier line. (H. Exh. 
XVII A, p. 7, sec. 6; H. Note, May 24, 1918, p. 23.) 

In view of their experience under the treaty of 
1845, which had demonstrated that the boundary line 
could not be established on the basis of purely ecclesi- 
astical evidence, Guatemala and Honduras when enter- 
ing into their next boundary treaty, that of March 1, 
1895, broadened the varieties of evidence admissible 
in order to establish the uti possidetis of 1821, so as to 
include not only "public documents" but ''in general all 
documents, maps, plans, etc., which may lead to clear- 
ing up the truth". They made no provisions as to any 
special order in which these varieties of evidence should 
be considered but merely stipulated that preference 
should be "given to those which by their nature should 
have greater force owing to their antiquity, or being 



53 

more clear, just or impartial, or for any other sound 
motive according to the principles of justice". 

Accordingly, the objective of the investigation of 
the uti possidetis of 1821 was made not only the com- 
mon boundary of the dioceses but "the extent of the 
territories which constituted the ancient provinces of 
Guatemala and Honduras at the date of their independ- 
ence" (art. 6). 

It seems to be contended on behalf of Guatemala 
that article 6 of the treaty of 1914 establishes an arbi- 
trary order of precedence. (G. Notes, July 25, 1918, 
p. 4; Sept. 21, p. 4.) The answer is that while it 
is true that the article mentions public documents first, 
something had to be written first and naturally "public 
documents", as the most authentic variety of evidence 
would be entitled to preferential consideration. But it 
will be noted that the article does not detail any order 
of preference among the various classes of public docu- 
ments, the parties being content to stipulate that they, 
along with other varieties of proof, should be given the 
weight to which their intrinsic merit should entitle 
them according to the general rules governing the ad- 
mission of evidence. In view of this governing prin- 
ciple, the order of recital of the several classes of evi- 
dence, other than public documents, was a matter of 
indifference. As regards "public documents", in the 
absence of royal cedulas conclusive by reason of their 
terms, surely a cedida issued by the King in 1563, and 
thereafter repealed by or inconsistent with later cedu- 
las, is not to be given more force than uncontradicted 



54 

land titles, official reports, judicial decisions, evidence 
of ecclesiastical jurisdiction and even maps or histori- 
cal statements of later date. That the Honduranean 
position on this subject is sound is shown by the course 
which the King of Spain followed in the Honduras- 
Nicaragua arbitration. The Honorable Alediator is 
referred to King Alfonso's award therein. 



III. 

THE EVIDENCE OF A GENERAL CHARACTER SHOWS 
THAT UNDER THE PRINCIPLE OF THE UTI POSSIDETIS 
OF 1821, HONDURAS HAD POSSESSION BOTH DE JURE 
AND DE FACTO AT LEAST UP TO THE LINE OF CERRO- 
BRUJO - CERRO OBSCURO - COYOLES - THE MANAGUA 
RIVER TO ITS CONFLUENCE WITH THE MOTAGUA 
RIVER x^ND THENCE THE MOTAGUA RIVER TO THE SEA. 
THIS LINE ALSO SUBSTANTIALLY DEFINES THE MOD- 
ERN LIMIT OF HONDURANEAN OCCUPATION. 

The boundary claimed by Honduras upon the prin- 
ciple of the iiti possidetis of 1821, as defined by Guate- 
mala in the present proceedings, is identical with the 
line just given, up to the confliuence of the rivers 
Managua and Motagua. Beyond the confluence, the 
boundary strikes north for Golfo Dulce or Lake Izabal 
and skirting the south shore of the Lake runs to the 
frontier of British Honduras. It is indicated on the 
map filed with the Honorable Mediator in May, 1918. 

It is proposed at this point to marshal the evidence 
which establishes the right of Honduras at least to the 
line in question in the sector between Cerro Brujo and 



55 

the confluence of the Managua and Motagua and 
thence along the latter river to its mouth as the mouth 
existed in 1821; and to defer for special consideration 
the Honduranean title to the coast region west of this 
river. Such separate consideration is in order because 
since 1821 changes have occurred in the coast region to 
the detriment of Honduranean possession therein, — 
first, the British encroachment in British Honduras 
and, in very recent years, the occupation by Guatemala 
of the remainder of the region. 

It is not seriously disputed by Guatemala that in the 
territory east of the Motagua river up to its confluence 
with the river Managua and thence along the latter 
stream to Coyoles, Cerro Obscuro and Cerro Brujo, 
Honduras has continuously since the year of inde- 
pendence maintained the uti possidetis of the colonial 
period. (G. Notes of June 22, 1918, pp. 34-35, and 
September 21, pp. 4-6.) There are only two debatable 
questions, namely those raised by the occupation of 
Honduranean territory, beginning in 1892, by the in- 
stallation of the Guatemala railroad for a few kilo- 
meters below the confluence of the Managua and Mota- 
gua, and the shifting since 1821 of the course of the 
latter stream in the last dozen kilometers before it 
reaches the sea. These questions will be discussed here- 
inafter (Point VI). '^^ 

The evidence now to be examined refers in general 
terms to the territory which, Guatemala may be taken 
to admit, was administered de facto by the temporal and 
spiritual officials of the Intendencia of Honduras and, 



56 

before 1787, by the authorities of the Province of the 
same name, and which Honduras claims was also an 
administration de jure. This territory comprises what 
are now the Honduranean sub-districts of Ocotepeque, 
Gracias and Copan which under the infendencia com- 
posed the sub-delegation of Gracias a Dios ; and the 
modern sub-districts of Santa Barbara and Cortes 
which composed the sub-delegations of Tencoa and 
San Pedro Sula in the intendencia. Stated in terms of 
the Guatemalan uti possidetis of 1821, this evidence 
shows that the eastern limit of administration by the 
colonial authorities of Guatemala was confined to what 
was the alcaldia mayor of Chiquimula at the close of 
the Spanish domination, adjoining the Honduranean 
sub-delegation of Gracias and what became the 
modern Guatemalan department of the same name. 

The boundary line, with some dispute as to its de- 
tailed meander, ran as hereinabove indicated. It is 
established by the following varieties of evidence which 
have been produced by Honduras in the present Media- 
tion or are available in print : ( 1 ) colonial legislation; 
(2) constitutions and legislation after 1821; (3) exer- 
cise of the electoral franchise before and after inde- 
pendence; (4) colonial administration, especially re- 
ports of officials in the course of duty; (5) land titles; 
(6) ecclesiastical evidence; (7) treaties between Gua- 
temala and Honduras and negotiations thereunder; 
(8) geographical and cartographical data. It is pro- 
posed to set forth briefly these varieties of proof, in 
their general aspects, without prejudice to later refer- 



57 

ences in a detailed discussion of the boundary section 
by section. 

(1) Spanish Colonial Legislation. 

The Real Ordenansa de Intendentes for New Spain, 
as Mexico was then called, was issued December 4, 
1786. It was designed to effect a re-organization of 
the colonial administrative system, in the direction of 
greater centralization of judicial, fiscal, police and war 
powers and of the elimination of abuses in the local 
governmental units. (See Smith, Viceroy of New 
Spain, ch. VI ; Priestley, Jose de Galves, pp. 289-292. ) ^ 

The Ordinance was extended to the Captaincy- 
General of Guatemala in 1787. The text of the initial 
cedilla has not come down to us, but we know that the 
theory of extension was the same as that later applied 
to Cuba : namely, that the Ordinance was to be adapted 
to local conditions and put into effect to the degree that 
those conditions warranted. (Zamora y Coronado, 
Legislacion Ultramarina, vol. Ill, p. 379, n. ; Altamira, 
Historia de Bspana, vol. IV, p. 195, sec. 811.) The 
province of Comayagua (Honduras) was at once 
erected into an Intendencia, Brig. Juan N. de Quesada 
taking the oath of office as the new Ooy^ywov -I nt en- 
dent e on June 26, 1787. The Alcalde Mayor of Teguci- 
galpa having refused-to recognize the authority of 
Quesada as Intendente, the latter consulted the Su- 
perior Board of the Royal Treasury at Guatemala City 
whether the alcaldia mayor of Tegucigalpa should be 
incorporated in his intendencia. The Superior Board 
on January 5, 1788, entered a decision in the affirma- 



58 

tive, adding that the Intendencia of Comayagua should 
include all the territory of the Bishopric of the same 
name; and referred its decision to the King for ap- 
proval. The King confirmed the decision by ccdula 
issued on July 24, 1791, including in the Intendencia 
of Comayagua "all the territory of its Bishopric, ex- 
cept the port and military post (plasa) of Omoa." 
(Vallejo, Historia documentada de los Limitcs entre 
Honduras y Nicaragua, etc., pp. 14, /j; Limit es 
entre Honduras y Nicaragua; A legato de Hondu- 
ras (Honduras-Nicaragua Arbitration), p. 75; Rami- 
rez F. Fontecha, op. cit., p. 115; p. 190, doc. no. 15.) 
The cedilla of October 16, 1818, restored Omoa to the 
jurisdiction of the Intendencia of Comayagua (H. Exh. 
XIII). As thus constituted the Intendencia of Coma- 
yagua endured without further territorial change until 
the date of independence. (Honduras-Nicaragua 
Award; Ramirez F. Fontecha, op. cit., p. 117.) 

The Ordenanza de Intendentes of September 23, 
1803, never came to have the legislative force of that of 
1786 because as a result of a certain contradiction with 
military regulations which was noticed, it was repealed 
by royal order of January 11, 1804, thus leaving only 
the earlier Ordinance in force. (Zamora y Coronado, 
op. cit., vol. Ill, p. 379, n.) But it is interesting to note 
that the Ordinance of 1803 made the following declara- 
tion as to continuing the organization of the intenden- 
cias in Central America: 

"Art. 6. In the Kingdom of Guatemala, 
the same as before are to continue the Intenden- 



59 

cias of San Salvador, Comayagua, Nicaragua 
and Chiapa, and the Intendencia of the district 
of its Capital shall be united to the Presidency 
thereof, all enjoying for the present the salaries 
which they now receive." 

Had the 1803 Ordinance been put into force in 
Central America, the Intendencia of Guatemala would 
have been limited to the district of its capital, as art. 6, 
just quoted, declares. When the Intendencia of Guate- 
mala was finally created — by royal order of June 25, 
1805 — it was, as Father Vallejo says {op. cit., p. 77), 
formed out of the province of that name without any 
change in its territorial extent. On this subject we 
also have the authority of Larreynaga and Marure in 
their Instructions to the Guatemalan boundary com- 
missioner in 1844 (H. Exh. No. XII. A, p. 1) : 

"In Guatemala an Intendencia was not 
created as it was entitled to in accordance with 
, the Ordenansa, because an experiment had been 
made in Mexico which caused conflict of juris- 
diction with the Viceroy. But subsequently 
there was established in this city an intendencia 
of province and not a military one, in accord- 
ance with the Royal Order of June 25, 1805, 
which was printed and circulated on March first 
following." 

By reason of the fact that the alcaldias mayores of 
Chiquimula and Verapaz — to mention only those which 
bordered on Honduranean territory — were not erected 
into either provinces or intendencias, they continued 
under the political, fiscal and military authority of the 



60 

Governor General. (Juarros, op. cit., vol. I, p. 9; 
IMendez, op. cit. (ed. Peralta), p. 244.) 

These ccdulas, which implantled the Intcndcncia 
system in Honduras and Guatemala, superseded all 
previous legislation, with the exception of the much 
discussed ccditla of August 23, 1745, whereby the gov- 
ernors of Honduras had been invested with military 
and contraband jurisdiction over the coast region west 
of the Motagua River up to Yucatan. We propose to 
discuss the effect of that ccdida in dealing with the 
validity of the Honduranean claim to this region {in- 
fra, p. 149 ct scq.). 

At this point, when the Honduranean possession 
up to the line of Cerro Brujo-Coyoles-Motagua River 
is under examination, we emphasize the fact that pur- 
suant to the ccdida of 1791, the territorial extent of the 
intendencia of Honduras was defined as coterminous 
with the Bishopric of Honduras ; and that upon the or- 
ganization of the state governments of Guatemala and 
Honduras and their federation in the Central American 
Union, following upon independence, each State con- 
tinued with its respective territorial jurisdiction as a 
colony. 

(2) Constitutional provisions and Guatemalan legislation 
after 1821. 

In answering Guatemala's claim to the line of Fon- 
seca Bay — Ulua River, based upon the ccdida of 1563, 
we had occasion to show that the claim was untenable 
for the reason, among others, that it was inconsistent 



61 

with the extent of territories assigned to the several 
States of Central America by the Federal constitution 
of 1824 and by the State constitutions of Guatemala 
and Honduras which were in force during the period 
of their federation and afterwards {supra, pp. 38-40). 
These constitutional provisions need not be re-exam- 
ined at this point. It will suffice to recall that in their 
total effect they show that in her fundamental charters 
Guatemala has never claimed sovereignty in the terri- 
tory east of her departments of Chiquimala and Izabal, 
that is to say, east of the Motagua river and the line 
of Coyoles — Cerro Obscuro — Cerro Brujo; and that 
such an admission against interest is conclusive upon 
her in the present Mediation. (Award of Alfonso 
XIII, in Honduras-Nicaragua arbitration, Ramirez F. 
Fontecha, op. cit., p. 117.) 

Although the Federal Congress during the life of 
the Central American Union enacted no statute which 
defined or affected the boundary between Guatemala 
and Honduras, the State legislature of Guatemala 
passed a number of laws which clearly show that 
Guatemala recognized that the line of her uti possidetis 
juris of 1821 did not extend to the east of the line of 
possession here under review. The Mediator's atten- 
tion may be profitably drawn to three of these laws 
which have been introduced in evidence by Honduras 
(H. Exh. XXI) : 

1825. A law passed on November 4 of this year by 
the constituent Guatemalan Assembly, provided: 

"Art. 1. The territory of the State shall 
be divided, into seven departments : . . . 2d, 



62 

Chiquimula, which comprises all the towns and 
valleys of the ancient corregimicnto of Chif|ui- 
mula and Zacapa. 

"Art. 2. The limits of the departments 
with respect to those adjoining shall be the 
limits which the parfido or partidos which enter 
into their formation have up to now recognized. 

"Art. 6. The department of Chiquimula 
shall be divided into seven districts, viz. : Za- 
capa, Ascasaguastlan, Sansaria, Esquipulas, 
Chiquimula, Jalapa and Mita ; and the following 
towns shall be the heads of these districts: 
Zacapa, San Agustin, Guastatoya, Esquipulas, 
Chiquimula, Jalapa, Asuncion Mita." 

No district or town is mentioned which lies to the 
west of the Honduranean line of the uti-possidetis 
of 1821. 

1839. The law of September 12, 1839 divided the 
Republic of Guatemala into seven departments of which 
one was Chiquimula; and provided that the depart- 
ments should comprise all the towns and places set 
forth in an annexed table. Among the thirty-eight 
towns and twelve curacies listed as corresponding to 
Chiquimula and among the six settlements placed in 
the Comandancia (military district) of Izabal, there 
is not a one which lies on the Honduranean side of the 
line here under consideration. 

1848. A decree of May 24, 1848— passed it will 
be noted after the boundary dispute with Honduras 
had arisen — ordered the holding of elections for depu- 
ties to a constitutional convention in accordance with 
the election law of August 5, 1838. The convention was 
to be composed of sixty deputies distributed in electoral 



63 

districts according to an annexed table. Among the 
districts listed were Esquipulas, Chiquimula, Zacapa 
and Gualan which are those bordering on the line of 
the uti possidetis of 1821. No mention is made of 
Copan or any other town, villages or hamlet on the 
Honduranean side. 

It is submitted that these organic laws as effectually 
foreclose the pretensions of Guatemala to Honduran- 
ean territory as the constitutional articles to which they 
gave effect. 

(3) Exercise of the electoral franchise before and after 
1821. 

The holding of elections is an exercise of sover- 
eignty, of a high order ; and evidence thereof in a dis- 
puted territory has been taken into account in the 
settling of boundaries. The Supreme Court of the 
United States has uniformly considered such evidence 
in determining the frontiers of the several states. 
{Maryland v. Virginia, 217 U. S. 1, 41; Virginia v. 
Tennessee, 148 U. S. 503, 516.) International arbitra- 
tors have proceeded likewise. In the Honduras- 
Nicaragua arbitration the award of King Alfonso re- 
cites the holding of elections by Honduras in the dis- 
puted area, as excluding the Nicaraguan claim thereto. 
(Ramirez F. Fontecha, op. cit., p. 117.) 

The Spanish Constitution of 1812 (art. 325) made 
provision for allowing the colonies a voice in their local 
affairs and in the Cortes in Spain. It authorized the 
town councils in each province to elect a diputacion pro- 



64 

vincial of seven members ; and each provincial deputa- 
tion was to elect a deputy to the Cortes. The constitu- 
tion was proclaimed in Guatemala City on September 
24, 1812; and on November 12 a preparatory junta or 
board designated twelve deputies to the Cortes from 
Central America, one from each of the provinces, 
among them being Guatemala, Chiquimula, Verapaz 
and Comayagua. But provincial deputations were 
actually elected only in Guatemala and Nicaragua. 
(Bancroft, History of Central America, vol. Ill, pp. 
8-10.) Elections speedily lost their practical interest 
because in May, 1814, King Fernando VII on his re- 
turn to Spain after his release by Napoleon, set aside 
the Constitution, which was not restored until March, 
1820. In April following it was extended to the col- 
onies, with all the laws issued by the Cortes. (Ban- 
croft, idem, pp. 22, 25.) As a result provincial elections 
were held in Central America in November, 1820. The 
partidos (districts) composing the intendencia of 
Comayagua participated, among them the partidos of 
Gracias a Dios and Tencoa. (Award of King Alfonso, 
Honduras-Nicaragua Arbitration, ed. Ramirez F. Fon- 
techa, p. 117.) On May 8, 1821, the Spanish Cortes 
enacted that the intendencia of Honduras should have 
a provincial legislature, with the territory then pos- 
sessed by the intendencia. (Vallejo, op. cit., p. x.) 

We again refer to the Guatemalan law of 1848, 
which ordered the holding of elections for deputies to 
a constitutional convention, in the sixty electoral dis- 
tricts wherein there was no mention of a single town 
east of the line of possession in 1821 (supra, p. 62). 



65 



(4) Colonial administration; official reports. 

In considering section by section the line of Hon- 
duranean possession in 1821, the documentary evidence 
which shows poHtical and ecclesiastical administration 
up to that line by the colonial officials of Honduras will 
be marshalled. At this point, where the evidence of a 
general character is under review, are collected reports 
covering the entire province of Honduras. These re- 
ports bear dates from the earliest years of Spanish 
domination down to the very eve of independence. 
They uniformly establish the Honduranean claim to the 
disputed area, at least as far westward as the line of 
Cerro Brujo — Cerro Obscuro — Coyoles and the Mana- 
gua and Motagua Rivers. 

1544. — In this year the Bishop of Honduras, 
Cristobal de Pedraza, who acting under an express 
royal provision had settled the dispute between the 
two adelantados, Montejo and Alvarado, made a report 
to the King on the Province of Honduras. In the re- 
port he described how Alvarado established within the 
Province the villages of San Pedro and Port of 
Cavallos and thereafter ordered his lieutenant Juan de 
Chaves to proceed inland and found a town within 
Honduras near the frontier with Guatemala. We re- 
fer the Mediator to the following passage (Coleccion 
de Document OS ineditosde Ultramar, vol. XI, p. 426. ) : 

"Said adelantado [Alvarado] stated that he 
accepted the said governancy in the name of his 
Majesty . . . and commenced to place jus- 
tices of his own hand and with the people whom 



66 

he brought with him, of the Christians and of 
those whom he found there [Naco], he settled 
the village of San Pedro and came to discover 
the town (pueblo) of Cavallos and left there 
ten or twelve other inhabitants . . . and 
zvitJi tJic surplus people from these said two 
populations lie sent a gentleman named Juan 
de Chaves . . . to seek a good site almost 
on tJie boundary betzveen Giiatemala and Hon- 
duras zvithin the land of Honduras in order 
that the tzvo governancies might communicate 
zvith each other and the said CJiaves proceeding 
zvith his people in search of the site zvandered 
a long time lost in the sierras and mountains 
until they reached the land zvhich nozv is Gracias 
a Dios. As they found that land level adjoining 
a river, they said 'Thanks to God that we have 
finally found level land' ; and so the city was 
named and they settled there about 50 in- 
habitants." 

1582. — Report of Alonso de Contreras Guevara, 
Governor of Honduras, on the state of his province. 
See p. 32, supra, where this report was cited to show, 
as a matter of contemporary administrative construc- 
tion, that the cedula of September 8, 1563 had been re- 
pealed by that of May 17, 1564. 

1646. — Memorial of Juan Diez de la Calle, second 
official of the Secretariat of the Consejo de Indias. 
This treatise on colonial legislation was cited at p. 33, 
supra, for the same purpose as was the report of Gover- 
nor Contreras Guevara. 

1684. — The Audiencia of Guatemala in reporting 
to the King as to the collection of fines in criminal 



67 

cases, took occasion to compile a detailed list of the 
towns and villages in Honduras and Chiquimula. It 
placed in Honduras the district of Gracias a Dios and 
therein Quesalica, Intibuca, Camasca, Cerquin, Oco- 
tepeque and Cucuyagua ; and the district of San Pedro 
Sula, with the settlements of Lemoa (Omoa) and 
Amatique. In Chiquimula the Audiencia does not 
mention a single village east of the Copan valley and 
the Motagua River below its confluence with the river 
Managua. (H. Note, June 22, 1918, p. 11; Misc. H. 
Exh.) 

1723. — Acting under a commission of the Audiencia 
of Guatemala, Joseph de Rodesno, one of its oidores, 
investigated the smuggling practiced along the coast 
of Honduras and in this connection reported on the 
districts, towns, rivers, bays and ports in the province 
of Honduras. The report was referred by the 
Audiencia to the Council of Indies. Rodesno placed in 
Honduras the Golfo Dulce, the rivers Motagua, 
Plantanos and Tinto, the ports of Castillo de Golfo 
Dulce, Omoa, Puerto Cavallos and Trujillo and the 
towns of Gracias, Sta. Cruz de Yoro and Tencoa. (H. 
Exh. XXV, No. 3). 

1744. — In this year Luis Diez Navarro, who during 
1743-1744 had by Royal order visited the coasts of 
Central America, compiled the results of his visit in 
his Descripcion del Reino de Giiathemala, dated Guate- 
mala City, May 30, 1244. He was an Engineer in the 
Royal army and served as Governor and Captain Gen- 
eral of Costa Rica 1745-1750. His Descripcion, which 
was highly esteemed, was printed in Guatemala in 1850 
(Peralta, Costa Rica y Colombia, pp. 160-161). Diez 
Navarro, besides presenting a detailed description of 



68 

the coast of the government of Honduras as far west 
as Golfo Dulce, lists its chief districts and towns. The 
following- is quoted from his description of portion of 
the province where it adjoins Chiquimula (H. Exh. 
XXV, no. 4, p. 9; Guatemala ed. of 1850, p. 11) : 

"The entire jurisdiction of the Government 
of Comayagua or Honduras begins on the coast 
from the River Motagiia already mentioned and 
ends at the Port of Truxillo ... Its Capital 
is the said City of Comayagua. It has four 
cities called Gracias a Dios, which is the wester- 
most; San Pedro Sula to the northwest; San 
Jorge Olanchito and Sonaguera to the east. 
The towns nearest the coast are in the partido 
of San Pedro Sula. Candelaria Vieja is a small 
Indian town which is distant from the Ports 
of Omoa and Caballos 12 leagues with a 
fair road ... In the partido of Lloro is 
the town of Candelaria Nueva near the River 
Lean . . ." 

1804. — Don Ramon de Anguiano, who had been 
gohernador-intendente of Honduras since 1790, made a 
report to the King on the condition of his intendencia. 
He specifically states that he did so in pursuance of 
what was ordered by arts. 57 and 58 of the Ordenansa 
de Intendentes. In this report, which Honduras has 
introduced as evidence (H. Exh. XXV, no. 27), 
Anguiano gives a list of the sub-delegations into which 
the Intendencia was divided, and the towns, villages, 
valleys and parishes contained therein. In the sub- 
delegation of Gracias a Dios he mentioned San Antonio 
del Descanso, Intibuca, Camasca and Quesalica; and 
in the lieutenancy {tenencia) of Sensenti, the mining 



69 

camp of San Andres, Labor de Santa Lucia, Jute, 
Copan Valley and Ocotepeque. In the sub-delegation 
of Tencoa he gives the village of Sta. Barbara and the 
parishes of Tencoa, Aluna and Porta. Attached to the 
report is a rough map, a reproduction of which has 
been offered in evidence by Honduras. 

A resume of Anguiano's Report is contained in 
Desdevises du Dezert, Vice-Rois et Capitaines Gene- 
raiix des hides Bspagnoles a la fin du XV III" Siecle, in 
the Revue Historique, vol. CXXV, p. 262 et seq. 

1821. — In March of this year Doctor Jose Mariano 
Mendez, who was Chief Priest of the Ciborium of the 
Cathedral at Guatemala City, and the delegate of the 
Province of Sonsonate to the Spanish Cortes, presented 
to the Cortes an elaborate Memorial in support of a 
plan for the consolidation of the existing fourteen 
provinces and iniendencias composing the Kingdom of 
Guatemala into eight provinces. As one of the eight 
provinces, Mendez proposed to continue the Intendencia 
of Comayagua, which he described as consisting of 
two partidos divided into nine sub-delegations (Meni- 
oria, ed. Peralta, p. 249) : 

"Third, Comayagua, Honduras, Intendencia 
of this name, with the partidos of Comayagua 
and Teguzigalpa, and the nine Sub-delegations 
of Gracias a Dios, San Pedro Zula, Tencoa, 
Yoro, Olanchito, Olancho Viejo, Teguzigalpa, 
Choluteca and Trujillo. It has 35 curacies in 
145 towns and 231 valleys and 93,501 inhabit- 
ants by the census of 1791. Its extent by 
width and length is more than that of Leon, 
with six ports on the coasts of the North, 



70 

which are Omoa, Puerto Caballos, Puerto Sal, 
Triunfo de la Cruz, Trujillo and Cartago, 130 
leagues from the river of the Gulf (rio del 
Golfo), in lands of wild Indians, with the is- 
lands of Ruatan and Guana j a, 18 leagues from 
Trujillo, which are 45 to 50 miles long and six 
to ten wade . . . On the south it has the 
bay of Conchagua, the rivers Nacaome and 
Choluteca, navigable from the sea to the interior 
of some towns ... in the town of Copan 
and Los Llanos [the plains] is placed the princi- 
pal tobacco factory . , ." 

The territory of Guatemala proper Mendez pro- 
posed should be continued with its existing alcaldias 
mayores, this territory being described by him as fol- 
lows {op. cit., p. 253) : 

"Guatemala, capital of the entire kingdom, 
situate in its center, should remain with the 
Alcaldias mayores of Sacatepec[uez, Guazacapan 
and Escuintla, Chimaltenango, Solola and 
Verapaz, with 60 curacies in 216 towns, which 
according to the census of 1778, count 260,081 
inhabitants, in the extent of more than 116 
leagues from the South Sea to the ocean by 
way of Verapaz where ports may be opened 
through the Polochic River, which empties into 
Lake Izabal and Golfo Dulce . . ." 

(5) Colonial land titles. 

In other boundary disputes between states the line 
of possession has been determined by land titles. This 



71 

is inevitable because there is no higher attribute of 
sovereignty than the grant of title to lands out of the 
public domain. In the settlement of the boundary 
questions which have arisen between the states of the 
American Union, titles have frequently been offered in 
evidence and the Federal Supreme Court has made 
them a factor in its decisions. Thus in Maryland v. 
West Virginia (217 U. S. 1), the Court in adopting as 
a boundary the so-called Deakins line claimed by West 
Virginia, rather than the Michler line postulated by 
Maryland, took into consideration Virginia land grants 
and even private conveyances which derived from 
them. On this subject the Court said (pp. 40-41) : 

''This record leaves no doubt as to the truth 
of the statement contained in the report of the 
committee of the Maryland Historial Society, 
that the Deakins line, before the passage of the 
act under which the Michler line was run, had 
long been recognized as a boundary and served 
as such. Even after the Michler line was run 
and marked the testimony shows that the peo- 
ple generally adhered to the old line as the true 
boundary line. There are numerous Virginia 
grants and private deeds of land given in the 
record, which call for this old Maryland line as 
the boundary . . . 

"A perusalrof the record satisfies us that for 
many years occupation and conveyance of the 
lands on the Virginia side has been with refer- 
ence to the Deakins line as the boundary line. 
. The people have generally accepted it and have 
adopted it, and the facts in this connection can- 
not be ignored , . ." 



72 

In Indiana v. Kentucky ihe same Court said (136 
U.S. 479, at p. 518): 

"The long acquiescence of Indiana in the 
claim of Kentucky, flic rights of property of 
private parties zvhicJi have grown up tinder 
grants from that State, the general understand- 
ing of the people of both States in the neighbor- 
hood, forbid at this day, after a lapse of nearly 
a hundred years since the admission of Ken- 
tucky into the Union, any disturbance of that 
State in her possession of the island and juris- 
diction over it." 

Land titles have had a like decisive influence in the 
determination of disputed boundaries in Latin Amer- 
ica. The arbitration of the Honduras-Nicaragua 
boundary under the treaty of October 7, 1894, between 
these two countries furnishes a direct precedent for 
the present Mediation. Article II, sec. 5 of that treaty 
is substantially equivalent to the provision of Article 
6 of the Guatemalan-Honduras treaty of 1914. {Tra- 
tados Vigentes de Honduras, Primer a Parte, p. 338.) 
Nicaragua, in order to establish the boundary between 
the Bay of Fonseca and Teoteacinte, offered in evi- 
dence a land title issued in the year 1720; and King 
Alfonso in his Award ran the line in that sector on the 
basis of the title. His Award reads (Ramirez F. Fon- 
techa, op. cit., p. 121) : 

"Considering that in continuing along the 
bed of the Poteca River up-stream until the con- 
fluence of the Guineo or Namasli river is 



73 

reached, the southern boundary of the estate of 
Teoteacinte is touched, to which the document 
presented by Nicaragua and dated August 26, 
1720, refers, according to which said estate be- 
longed to the jurisdiction of the city of New 
Segovia (Nicaragua)." 

In the present proceeding the land titles introduced 
in evidence by Honduras have exceptional importance 
because they serve to demarcate the line of Hondura- 
nean possession for a considerable portion of fron- 
tier, namely from Cerro Brujo to the parallel of Copan 
and thence to the Managua River. They effectually 
negative Guatemala's claim to the entire region east of 
this line. Guatemala therefore objects strenuously to 
the consideration thereof by the Honorable Mediator. 
Her representative has urged several objections. He 
contends that article 6 of the treaty of 1914 does not 
expressly mention land titles. The article speaks only 
of "public documents" ; and according to the Guatema- 
lan representative land grants are merely documents of 
a private character. He further contends that even if 
land grants were admissible as evidence under the 
treaty, as private documents they prove no exercise of 
jurisdiction by the colonial officials of Honduras. (G. 
Notes, June 25, 1918, pp. 18-21; July 25, p. 56; Sept. 

21,p. vn.) 

As regards the Guatemalan objection to the admis- 
sibility in evidence of the land titles, that has been 
sufficiently answered in our consideration of the prin- 
ciple of the uti possidetis of 1821 as applied to the pres- 



74 

ent proceeding {supra, pp. 52-54). That our position is 
sound, is confirmed by the decision of King Alfonso to 
admit in evidence in the Honduras-Nicaragua award 
the title to the Hacienda of Teoteacinte offered by 
Nicaragua. 

We propose now, by a brief review of the colonial 
legislation to show that land titles not only are public 
documents but also involve acts of jurisdiction by the 
local authorities of the province of Honduras. 

The Kings of Spain claimed title to the Indies as 
their personal patrimony, by right of discovery con- 
firmed by the Bull of Pope Alexander VI of May 4, 
1493, which divided the new world between them and 
the Kings of Portugal ; and that this right carried with 
it the free and absolute disposition of the territory of 
the Indies, so that none could legally have title to lands 
therein, save by grant of the Crown or of its delegates. 
(Recop. de Indias, B. IV, t. 12, 1. 14; Pallares, Legis- 
lacion federal Complement aria (Mexico, 1897), pp. 
vi-viii.) During the first century and a half of the 
colonial period the Kings of Spain authorized the 
presidents of the Audiencia of Guatemala to make 
grants of lands within the kingdom; and in the case 
of lands held by defective or insufficient title enter into 
composiciones (adjustments, against the payment of 
the assessed value of the acreage involved). (Recop. 
de Indias, B. IV, t. 12, 1. 14; and cedula of November 
1, 1598, set forth in the title to the Hacienda de San 
Nicolas, H. Land Titles, pp. 62-64. ) The governors of 
the provinces, Honduras included, had like authority 



75 

in new lands. (B. IV, t. 12, 1. 15 and 16.) But in both 
cases the Kings reserved the prerogative of confirma- 
tion for the vahdity of such grants. (Orozco, Terrenos 
Baldios (Mexico, 1895), vol. II, p. 768.) 

In 1754, in view of the expense of securing royal 
confirmation, which was so great that few land owners 
had thus perfected their titles, the system was changed. 
By the Real Instruccion of October 15 of that year 
(Orozco, op. cit., vol. I, p. 59 et seq.; English transla- 
tion in White, New Collection of Colonial Laws 
(Philadelphia, 1829), vol. II, p. 62 et seq.), 
it was provided that all new grants of lands 
should be issued by special land judges (called 
subdelegados or jueces privativos de terrenos) named 
by the Captain General in the several provinces, and 
should thereafter be confirmed by the Audiencia (ch. 
1 and 10). It was also the duty of the Audiencia to 
confirm compositions (composiciones) made by the 
local land judges with the owners of lands whose exist- 
ing titles dated later than 1699 and were defective 
through lack of survey, fiscal valuation, royal confirma- 
tion or through excess of acreage. These compositions 
were issued in consideration of payments into the 
Royal treasury of the assessed value of the lands (ch. 
5). Older titles required no composicion but simply a 
decree of approval noted thereon by the subdelegado 
(ch. 4). 

The proceedings before the local subdelegado or 
jue^ privativo for the grant of crown lands consisted 
of (a) the petition or denouncement of the interested 



76 

party; (/;) the survey and demarcation of the land by 
the subdclegado after citation and hearing of oppos- 
ing claimants; (r) the valuation of the land, as meas- 
ured and demarcated by the local judge or subdelegate ; 
and {d) the payment into the Royal Treasury of the 
price of sale (remate) or composition. Following upon 
this the docket was remitted to the Audiencia, which, 
after {d) hearing the Fiscal (Attorney General), ((?) 
entered a decree of adjudication (in the case of new 
titles) or of composition (in the case of old titles). 
The jues privativo also acted as trial court in deciding 
the merits of opposing claims or other judicial ques- 
tions, with an appeal to the Audiencia; and executed 
any orders of the Audiencia as to further requisites 
exacted before the title should issue. (Orozco, op. cit., 
vol. I, pp. 70-75 ; vol. II, pp. 771-774.) He also inserted 
in the title issued a transcript of his own appointment. 
(Orozco, vol. I, p. 72.) 

The system thus briefly sketched continued in force 
in the Captaincy General of Guatemala until 1787, 
when with the extension to it of the Real Ordenansa 
de Niieva Bspana of 1786, the duties and authority of 
the provincial land judges passed to the Intendentes 
and the power of confirmation devolved upon the Junta 
Superior de Hacienda (Superior Board of the Treas- 
ury). See Ordenanza, art. 81 ; Orozco, vol. I, pp. 96-98. 

It will be noted that at every stage from the initial 
petition for sale or composition to the final decree, the 
public authorities of the kingdom intervened in the 
grant of land titles; the mere recital suffices to refute 



77 

the Guatemalan contention that ancient land titles are 
not public documents. The Spanish text writers are to 
the same effect. Thus Escriche (Diccionario Raso- 
nado de Legislacion y de Jurisprudencia, s. v. "Instru- 
mento publico") says that a public document "in gen- 
eral is every writing authorized by a public functionary 
in the matters corresponding to his office or employ- 
ment". Moreover, under the procedure for granting 
titles to Crown lands, the local authorities of the Prov- 
ince in which the lands lay necessarily intervened ; and 
the very fact of their intervention is evidence that the 
lands were situated in the particular Province. In 
fact in each title the local sub-delegate stated the 
Province within which the land was located ; and since 
each title went up to the Audiencia or the Junta 
Superior de Hacienda for confirmation, the lawful 
exercise of jurisdiction by the sub-delegate was implied. 
The grants by the Captain General of lands in 
Trujillo, instanced by Guatemala in an attempt to show 
that the land titles produced by Honduras are not 
proper evidence of Honduranean jurisdiction (G. Note 
of Sept. 21, 1918, app., p. vii), are not in conflict with 
the Real Instruccion of 1754. Trujillo was in the year 
1783 for military reasons placed under the direct juris- 
diction of the Governor General; and this jurisdiction 
was held by the King to include the power to make 
land grants. (G. Exh. No. 4, pp. 1-2.) This power 
ceased when by cedula of September 19, 1816, Trujillo 
was restored to the direct authority of the Intendente 
of Honduras. (H. Misc. Exh.) 



78 

Honduras has put in evidence fifty- three land titles, 
eleven of which were furnished by the Guatemalan com- 
missioners in the proceedings under the treaty of 1895. 
Of these, twenty-two are colonial titles; six date from 
the time of the Federation; and the other twenty-five 
are modern, except that two of the documents from 
Guatemalan sources (covering the Haciendas of 
Playon and Pozas y Remudadero, which are disputed 
by Honduras), were originally surveyed in the colonial 
epoch. These titles are extracted in the volume printed 
by Honduras for convenience and submitted to the 
Honorable Mediator.* 

The Guatemalan representative has especially ob- 
jected to the admission as evidence of those titles which 
post-date the year of independence. (G. Note, July 25, 
1918, pp. 62-63.) In the opinion of counsel, the Hon- 
duranean representative has made ample answer in the 
following passage in his Note of August 27, 1918, pp. 
29-30: 

"Title deeds issued subsequent to 1821, while 
they may not serve as evidence that the lands 
they cover were included in the respective Prov- 
inces, prior to the date of Independence, do serve 
to establish actual possession on the date of 
their issuance, which carries with it a 
presumption of indefinite prior possession, 

*In this printed volume will be found extracts from thirteen judicial 
dockets in civil or criminal proceedings, all but three of which antedate 
the year of independence. Their effect will hereinafter be discussed in 
the review of the judicial proofs. At this point they are mentioned be- 
cause they sei-ve to confirm the facts of Honduranean administrative 
jurisdiction which are indicated in the land titles. All but three arose 
before 1821 ; and many of them contain recognition by Guatemalan offi- 
cials, through positive acts, of the extent of Honduranean jurisdiction. 



79 

until the contrary is proved. This is the 
case in regard to the title deeds issued prior 
to the Convention of 1895, and their force 
increases according to their proximity in date 
to the Independence, and still more so, if the 
grants were made at a time when Honduras and 
Guatemala were both States, members of a 
single Nation, under a common Federal Govern- 
ment, possessed of sufficient authority to put 
an end to any differences that might arise be- 
tween them. (Article 137 of the Constitution 
of the Federal Republic of Central America, 
dated November 22, 1824.)" 

It is confidently submitted that the Honduranean 
uti possidetis of 1821 from Cerro Brujo to the Mana- 
gua river may be determined in detail by the Honor- 
able Mediator on the basis of these land titles, irre- 
spective of the cumulative evidence of other varieties 
which Honduras has been able to produce. 

(6) Ecclesiastical evidence. 

Attention has been drawn to the fact that pursuant 
to the cedula of July 24, 1791, which continued in force 
to the close of the colonial era, the territory of the 
Intendencia of Honduras comprised all the territory of 
the Bishopric of Honduras. Mendez so stated in his 
Memoria (ed. Peraltaa P- 262) ; it was thus provided 
in the Honduranean State constitutions of 1825, 1839 
and 1845 ; and the Guatemalan Government in the In- 
structions of 1844 to its boundary commissioners, so 
affirmed. (H. Exh. XVII A, p. 1.) 



80 

In fact, it becomes evident from a study of these 
Iiistnictious of 1844, that the Guatemalan Government 
conceived that the boundary with Honduras would be 
(Established by the process of ascertaining the Hmits of 
the episcopal jurisdiction in Honduras. The matter is 
of sufficient importance to warrant an extended quota- 
tion. (H. Ext. XVn A, pp. 2, 3) : 

"The boundaries of the Bishopric of Hon- 
duras, and those of any other, are well known, 
as every town, valley, hamlet, estate and farm 
knows where it must go for the administration 
of the sacraments, for its marriages, baptisms, 
interments, attendance at church, tithes, first 
fruits and other religious obligations, and know- 
ing this one knows the political boundaries, 
which are the same as the ecclesiastical . . . 

''The Commissioner shall bear in mind and 
have at hand the zvork of Father Juarros, in 
tzvo volumes J, wherein are listed the villages, 
valleys, estates, rivers and other pecidiarities of 
the Department of Chiquimula, zvhich is the one 
bordering on Honduras. There are two sure 
data; one is that the valley of Copan divides 
Chiquimula and Honduras, and the other that 
the Motagua is also a dividing line. Juarros 
should be taken as text because he wrote from 
the end of the past century and the {official) 
approvals are dated i8os, ivhen no one could 
suspect the disturbances which subsequently 
have affected all ideas, to which shoidd be added 
the great regard for truth and exactness with 
which he zvrites, and the scrupulous investiga- 



81 

tion which he made of every point in his hook, 
especially in matters relating to curacies and par- 
ishes because he had at hand the records of the 
visits of the archbishop Larras in the year 1768, 
and the maps of Mgr. Monroy of 1784, and 
also the books of the secular and ecclesiastical 
corporations and the cedularios {collections of 
cedulas) of both, together with m,any other 
official documents. The pertinent portion of this 
work of Father Juarros is the chapter on Chi- 
quimula, vol. I, p. 34; Honduras, p. 38; Coma- 
yagua, p. 40; ecclesiastical geography, p. 92; 
table of curacies, p. 98; alphabetical index of 
places, p. 105, in order to find the villages on 
the border between Chiquimula and Honduras. 
In volume H, the chapter on the changes of 
provinces, p. 27 ; Chiquimula, pp. 156 to 167 and 
171 . . ." 

If the Mediator will turn to the tables in Juarros, 
as recommended by the Guatemalan Instructions of 
1844, he will find (at pp. 96-100 of vol. I) the list of 
the parishes in the diocese of Guatemala proper. In 
the parish of Chiquimula, which is that adjoining the 
diocese of Honduras, are listed the towns of Chiqui- 
mula, Esquipulas, Jocotan, San Christoval Acasa- 
guastlan and San Luis Xilotepeques, none of which is 
east of the line of po^ession of 1821. 

The alphabetical index of all the towns, villages 
and valleys of the Kingdom which is stated by the 
Guatemalan Instructions of 1844 to be found in 
Juarros (vol. I, pp. 105-128), gives the location of 



82 

each place in both the particular diocese and in the 
political province or district in which it is found. The 
index does not place in the diocese of Guatemala proper 
a single town, village or valley which lies east of the 
line of ufi possidetis of 1821. 

Juarros (on pp. 103-104 of volume I) gives a table 
of parishes in the diocese of Honduras which, he says, 
"has been based upon the report which the Most Illus- 
trious Fray Fernando Cadifianos, Bishop of Honduras 
made to his Majesty in the year 1791." The table 
divides the parishes into those lying in the partido of 
Teguzigalpa and those in the partido of Comayagua. 
The complete list in the latter partido is as follows 
(those bordering on Chiquimula italicized) : "La Cari- 
dad, Ajuterique, Camasca, Cerquin, Chinacla, Cururu, 
Gracias a Dios, Gualcha, Intibuca, Yoro, Ocotepeque, 
Olanchito, Olancho, Petoa, Quesailica, Sensenti, 
Siguatepeque, Silca, Sonaguera, San Pedro Zula, 
Sulaco, Tatumbla, Tencoa, Tuima." The Report of 
Bishop Cadifianos has been introduced in evidence by 
Honduras (H. Exh. XXV, No. 13). It was submitted 
to the Council of Indies which at its meeting of May 
16, 1792, resolved that a cedula be issued thanking the 
Bishop for his zeal and recommending that in accord 
with the Gohernador-Intendente of Honduras he take 
all possible steps to relieve the miserable condition of 
the people. Thus the report of Bishop Cadifianos, by 
reason of its official character and its express approval 
by the Council of Indies, and also in view of the fact 
that it was the last episcopal survey made before inde- 



83 

pendence, acquires especial weight. As to its official 
character, it need only be remarked that the Code of 
the Indies required prelates to make personal inspec- 
tion of their dioceses and report thereon. (B. I, t. 7, 
1. 24.) This report of Bishop Cadiiianos, as brought 
up to date by Father Juarros shows that the diocese 
of Honduras extended up to the line of Cerro Brujo- 
Caulotes-Motagua River here under general considera- 
tion. However, the information contained in the re- 
port is not sufficient to demarcate the line in detail. 

In fact, while the ecclesiastical evidence in general 
establishes the Honduranean claim of jurisdiction, the 
documents extant are insufficient to fix the boundary 
in detail. This is confirmed by the fact that the Gua- 
temalan Instructions of 1844, as may be seen in our 
quotation made above, proposed that the commission- 
ers should ascertain the line by taking the testimony 
of the inhabitants, as to where they went to baptize, 
marry, bury, pay tithes, etc. (H. Exh. XVII-A, sec. 
2) ; and that nevertheless in the sequel the commission 
under the treaty of 1845 broke, down for lack of 
ecclesiastical evidence. 

Before leaving the consideration of the ecclesiasti- 
cal evidence in its general aspects, we should draw 
attention to the fact and reasons for the close corre- 
spondence of the tefritorial limits of temporal and 
ecclesiastical jurisdiction, throughout the history of 
the Spanish colonies. 

It has already been noted that the Kings of Spain 
regarded the Indies as their personal patrimony, a 



84 

status which was recognized by the Bull of Alexander 
VI, issued May 4, 1493. Under that Bull and the Bull 
of Julius II, of July 28, 1508, the Spanish Kings as- 
sumed the duty of converting the Indians and for this 
purpose the exclusive right of ecclesiastical patronage. 
The Popes thereafter did not attempt to interfere with 
the royal control; and they regularly invested with 
ecclesiastical authority the prelates nominated by the 
Spanish Kings. ( Velez Sarsfield, Relaciones del Est ado 
con la Iglesia, p. 20.) The clergy could not leave for 
America without royal license. (Recop. de Indias, B. 
IX, t. 26, 1. 2.) The Council of Indies or the political 
authority in the colonies decided upon personal capac- 
ity for ecclesiastical offices; and even controlled the 
building of churches (B. I, t. 6, 1. 1 and 2). The arch- 
bishops and other prelates were ordered to comply with 
the decrees of the Audiencia (1. 35). The Council of 
Indies could revoke all ecclesiastical decisions. See 
Velez Sarsfield, op. cit., p. 35 ; Moses, Spanish De- 
pendencies, vol. II, p. 221 ; Bancroft, History of Mex- 
ico, vol. Ill, ch. 32. 

The boundaries of the ecclesiastical districts were 
also subject to civil control. {Recop. de Indias, B. I, 
t. 6, 1. 1 ; Velez Sarsfield, idem, pp. 21, 83.) In exercise 
of this control the Code provided as the organic law 
that the ecclesiastical and temporal divisions should 
correspond. Law 7 of t. 2, b. II enacted: ''Always 
taking care that the temporal division shall correspond 
and conform so far as possible with the spiritual; the 
Archbishoprics and provinces of the religious with the 



85 

districts of the audiencias: the bishoprics with the gov- 
ernaciones and alcaldias mayores; and parishes and 
curacies with the corregimientos and alcaldias ordin- 
arias". The clergy were also required to keep within 
their prescribed boundaries and districts. (B. I, t. 7, 1. 
3; Velez Sarsfield, idem, p. 118.) 

In the beginning, shortly after Honduras was 
erected into a province, a bishopric was in 1539 created 
therein, the bishop being a suffragan of the Archbishop 
of Santo Domingo. (Diez de la Calle, Memorial 
(1646), pp. 127, 176.) The first Bishop of Honduras 
was that Cristobal de Pedraza who settled the dispute 
between the adelantados, Montejo and Alvarado, as to 
who was entitled to the gobernacion of the Province 
of Honduras. (Juarros, op. cit., vol. H, p. 181.) The 
province of Guatemala was erected into a bishopric in 
1534, shortly after its occupation by Alvarado, its met- 
ropolitan being the Archbishop of Seville. (Juarros, 
vol. I, p. 139.) When Mexico was made an arch- 
bishopric in 1547 it was given jurisdiction over the 
diocese of Guatemala, the bishopric of Honduras re- 
maining a suffragan of Santo Domingo. (Juarros, vol. 
I, p. 129; Moses, Spanish Dependencies, vol. II, p. 213.) 
In 1743 the bishop of Guatemala was made an arch- 
bishop, and besides his own diocese, acquired metro- 
politan jurisdiction over the diocese of Honduras, 
Nicaragua and Chiapas. (Juarros, idem.; Bancroft, 
History of Central America, vol. II, p. 712.) 

Such was the situation when in 1787 the Ordenansa 
de Intendencias was extended from 'Mexico to the Cap- 



86 

taincy General of Guatemala. The introduction of the 
intendencia system in Mexico had involved in general 
no changes in the limits of spiritual jurisdiction. Quite 
the contrary, from the table of the new intendencias 
appended to the Ordinance, it is apparent that they 
were to be established, one in each bishopric. It has 
already been noted herein that the same theory was ap- 
plied by the cedulas which extended the Ordenanza de 
Intendentes to the Kingdom of Guatemala. 

(7) Treaties between Guatemala and Honduras ; and 
negotiations thereunder. 

(a) Treaty of August 14, 1839. 

In showing that the Guatemalan claim to the Ulua- 
Fonseca line was untenable, we have already referred 
to the provision in the treaty of August 14, 1839 which 
recommended Los Llanos de Santa Rosa in Gracias, 
as a convenient place for the conference of the Central 
American Republics called by the treaty (supra, p. 40). 
Here we have an admission by Guatemala in a solemn 
instrument binding her to Honduras, that the colonial 
subdelegation of Gracias a Dios lay in the latter 
Republic. 

(b) Treaty of July 19, 1845. 

Article 13 of this treaty provided: 

''The States of Honduras and Guatemala 
recognize as their common boundary that laid 
down for the Diocese of each in the Royal 
Ordinance of Intendentes of 1786, and in order 



87 

to fix the dividing line in a manner that cannot 
be doubted the two States will appoint their Com- 
missioners . . ." 

While this article was abrogated by the treaty of 
March 1, 1895, it furnishes historical evidence that dur- 
ing the many years that it was in force the high parties 
recognized that the territorial extent of each State was 
defined by the limits of the episcopal diocese of each 
under the system of intendencias; and in consequence 
that the line of iiti possidetis of 1821 was to be deter- 
mined by ascertaining the limits of ecclesiastical juris- 
diction exercised in the two dioceses. The Instructions 
prepared in 1844 by order of the Guatemalan Govern- 
ment for the guidance of its boundary commissioner 
in demarcating the boundary under the treaty, so indi- 
cate. They begin by declaring (H. Exh. LXVII A, 
p. 1): 

"It must therefore be taken as a basis that 
the territory of the State of Honduras is that 
of its bishopric. In the Federal Constitution in 
Article 7, the territory of each State is not speci- 
fied. It only provided that a special law would 
fix the boundaries, which up to the present time 
has not been done. But in the bases which were 
published shortly before, on December 17, 1823, 
the number of towns and places of each one was 
set forth, as also the population, taken evidently 
from the work of Father Juarros, although it 
increased his figures considerably, and from 



88 

these bases it is seen that each State was con- 
sidered as having- the territory of its inten- 
dencia." 

The lustructious then provide detailed directions 
for the course to be taken and the evidence to be con- 
sidered in determining the boundary Hne. Reference 
to these directions will be made hereinafter in review- 
ing the evidence available to establish the several sec- 
tions of the boundary. 

At this point, when the Inst met ions of 1844, in their 
general aspect are under consideration, we wish to 
emphasize that their evidential value can hardly be over- 
estimated. They show that they were prepared with 
great care. They were drafted by two distinguished 
Guatemalan publicists whose personal knowledge went 
back to the closing years of Spanish domination, whose 
erudition was great and whose devotion to their coun- 
try was unquestioned. Marure and Larreynaga were 
not likely to understate the territorial claims of Guate- 
mala. 

In short, the Instructions of 1844 seem to counsel 
of Honduras as evidence in the present Mediation of 
the greatest persuasiveness, as in the nature of an ad- 
mission by Guatemala against interest and even as an 
estoppel from greater claim by her at the present time. 

(c) Treaties of March 1, 1895 and August 1, 1914. 

The effect of these two treaties, particularly as re- 
gards the demarcation of the line of the uti possidetis 
of 1821 by the Mixed Boundary Commission under the 



89 

earlier treaty, between Cerro Brujo and the Portillo de 
Caulotes, will be considered in the detailed treatment of 
this sector of the line. They are here mentioned to 
I'ound out the general account. 

''8) Cartographical and geographical evidence. 

There can be no doubt that maps and geographical 
data are admissible evidence in this prooceeding. 
(Treaty of 1914, art. 6.) The Guatemalan represen- 
tative has objected thereto on the ground that they can 
have no weight in the face of a real cedula such as that 
of September 8, 1563. (G. Note, Sept. 21, 1918, p. 6.) 
But in view of the repeal of that decree, such objection 
is untenable. It is not pretended by Honduras that the 
testimony of maps and geographers shall prevail 
against the express terms of royal decrees or other 
public documents. But to the extent that such testi- 
mony is corroborative or helps to define the limits of 
jurisdiction expressed in public documents, it is entitled 
to consideration in accordance with the general rules 
of law. (See supra, pp. 53-54.) 

In point of fact maps and geographical data have 
been given effect in the adjustment of most disputed 
boundaries. The following instances in Latin America 
may be cited : Award of King Alfonso XIII, 1906, Hon- 
duras-Nicaragua arbitration (Ramirez F. .Fontecha, 
op cit., pp. 118-119); Award of Argentine President, 
Bolivia-Peru arbitration, 1909 {Am. Journal Int. Law, 
vol. Ill, p. 1035); Award of Chief Justice White, 
Costa Rica-Panama . arbitration, 1914 {Idem., vol. 



90 

VIII, p. 920.) As to the weight given to maps and 
geographical data by the Supreme Court of the United 
States in determining boundaries in disputes between 
the states, see Louisiana v. Mississippi, 202 U. S. 1, 57. 
Honduras has submitted to the Honorable Media- 
tor seventy-four maps, and has referred to others, 
which throw light upon the territory in dispute. The 
maps cover the entire period of the Spanish domination 
and the period since independence to 1900. They 
have been gathered from various sources, official and 
private, from twelve countries. In their selection and 
evaluation, counsel to Honduras, as already noted, 
have had the benefit of the assistance of Dr. Mary W. 
Williams. The seventy-four maps submitted are 
believed by Dr. Williams to be representative of the 
hundreds which she examined. Her analysis and con- 
clusions may be profitably quoted, it being borne in 
mind that the texts of the geographers and travellers 
are, in general, corroborative: 

"As regards boundaries indicated, the mate- 
rial presented may be divided into five fairly 
distinct classes, as here given : 

"A. Ten maps giving to Honduras the 
whole coast of the Bay of Honduras as far as 
the boundaries of the present day Belize, also 
known at various times as British Yucatan or 
British Honduras: 

1. 1527 — Spanish Official — Weimar. 

2. 1601— Herrera Map, No. 1— Madrid. 

3. 1666 — Goos — Amsterdam. 



91 

4. 1688 — Oexmelin — Paris. 

5. About 1698 — Vooght — Amsterdam. 

6. 1 699 — Gage — London. 

7. 1730— Herrera— Madrid. 

8. 1757— Dies— Madrid. 

9. 1841— Bird Allen— London. 
10. 1854— Costello— London. 

"B. Fifteen maps giving Honduras all ter- 
ritory as far west as the Dulce waterway : 

1. 1597 — Wytfliet — Louvain. 

2. 1625 — De Laet — Leyden. 

3. 1664-1665 — Blaeu — Amsterdam. 

4. 17th cent. — ^Jansomini — Amsterdam. 

5. 1720— Delisle— Paris. 

6. 1781 — Bonne — Paris. 

7. 1792 — ^Jefferys — London. 

8. 1799— Jeff erys— London. 

9. 1799— Ruiz— Madrid. 

10. 1801— Araoz— Madrid. 

1 1 . 1822 — Strangeways — Edin. 

12. 1828— Hall— London. 

13. 1831 — Dower — London. 

14. 1834— Gulf Dulce— Hydr. Map, Brit- 

ish Admiralty. 

15. 1834 — River Dulce— Hydr. Map, Brit- 

ish Admiralty. 

"C. Thirty-three maps giving Honduras 
Cape Three Points; also the whole territory 
drained by the Motagua River system, except 
that a few omit insignificant portions of said 
system : 

1. 1656 — Sanson D' Abbeville — Paris. 

2. 17tb cent. — ^Jansomini — Paris. 



92 



3. 1696 — Coronelli — Venice. 

4. About 1700— Visscher— Holland. 

5. About 1700— Morden— London. 

6. 1731— D'Annville— Paris. 

7. About 175-1 — Bellin — Paris. 

8. 1755 — Hinton — London. 

9. About 1756 — Ottens — Amsterdam. 

10. 1762 — Kitchin — London. 

11. 1764— Bellin— Paris. 

12. 1767— Alzate— Mexico or Madrid. 

13. 1771 — Speer — London. 

14. 1775 — Jefferys — London. 

15. 1779— Kitchin— London. 

16. About 1782— Bonne— Paris. 

17. 1791— D'Annville— London. 

18. 1792 — El we — Amsterdam. 

19. 1793 — Bryan Edwards — London. 

20. 1809— Guthrie (Carey ed.)— Phila. 

21. 1816— Brue— Paris. 

22. 1816 — Thompson — Alcedo — Arrow- 

smith — London. 

23. 1816— J. Thomson— Edin. 

24. 1818 — Bonnycastle — London. 

25. 1818— Pinkerton-Hebert— Phila. 

26. 1822— Morse— New Haven. 

27. 1822— Tanner— Phila. 

28. 1823— Baily's Juarros Map. 

29. 182^1 — Caxton — London. 

30. 1827 — Vandermaelin — Brussels. 

31. 1830— Spanish Atlas— Madrid. 

32. 1835-1841— Honduras Gulf — Hydr. 

Map, Br. Adm. 

33. 1842— Lizards— Edin. . 



93 

"D. Eight maps giving Cape Three Points 
and the lower part of the Valley of the Motagua 
to Honduras: 

1. 1826 — Arrowsmith — London. 

2. 1829 — Thompson's Narrative — Lon- 

don. 

3. 1832— Brue— London. - 

4. 1834 — Le Sage — Venice. 

5. 1835— Findlay— London. 

6. 1841-1842— La Rue— Paris. 

7. 1843 — Duvotenay — Paris. 

8. 1849 — Squier — Washington. 

"E. Eight maps giving the lower part of the 
Motagua River or the whole of it as the Hon- 
duras boundary in the northwest : 

1. 1804 — Gov. Honduras Anguiano Plan. 

2. 1829— Hall— London. 

3. 1839— English Coloniz.— London. 

4. 1840— British Col. Co.— London. 

5. 1847 — Dunlop — London. 

6. 1850— Disturnell— New York. 

7. 1881 — Ammen Bizemont — Paris. 

8. 1900— Byrne— New York. 

"A study of the dates of the maps above 
listed makes it clear that, in general, the earlier 
maps place Honduras' boundary farther west 
than the later ones — that with the passage of 
time Honduras' western boundary from a purely 
cartographical point of view has retreated to- 
wards the east. There is, however, scarcely a 
map in the groups listed of an origin previous 



M 



to 1821, but gives to Honduras Cape Three 
Points and virtually the whole of the territory 
drained by the Motagua on both sides of the 
river. Furthermore, there is considerable evi- 
dence that even at a later date Honduras owned 
all territory at least as far west as the Dulce 
waterway. Such evidence is supplied by the last 
maps in Class B, and also by geographical data, 
including such important works as Diccionario 
Geografico Universal, Barcelona, 1834, and 
Bell's System of Geography, Glasgow, 1847. 
Indeed, even as late as 1841, in a paper based 
upon the observations of British naval officers 
and read before the Royal Geographical Society 
of London, Captain Bird Allen of the British 
Navy stated definitely that the Sarstoon sepa- 
rated the State of Honduras from Belize." 



The several varieties of evidence of a general char- 
acter which are reviewed hereinabove, clearly support 
the Honduranean contention that at the close of the 
colonial period and for centuries previous thereto the 
Intendencia or Province of Honduras extended at least 
as far as the line of Cerro Brujo — Cerro Obscuro — 
Coyoles — Managua River — Motagua River. We pro- 
pose next to pass to a consideration of the evidence of a 
more local nature which establishes this line in detail. 
For convenience of treatment the line will be considered 
in three sections: first, the southernmost section from 
Cerro Brujo, through Cerro Obscuro, to Portillo de 
Caulotes or Coyoles, which is west of and on the par- 



95 

allel of the Copan ruins; second, the middle section, 
from Coyoles to the Managua and thence along this 
stream to its confluence with the Motagua river; and 
third, the northernmost, from the confluence of the 
Managua and Motagua rivers to the Gulf of Honduras. 
Thereafter, the Honduranean claim to the littoral 
west of the Motagua River upon the strict principle of 
the iiti possidetis juris of 1821 (as defined by the Repre- 
sentative of Guatemala) will be discussed in a separate 
point. 



IV. 

THE LINE OF POSSESSION IN 1821 RAN SUBSTANTI- 
ALLY FROM CERRO BRUJO THROUGH CERRO OBSCURO 
TO THE PORTILLO DE CAULOTES OR COYOLES; AND 
CERRO BRUJO AND CERRO OBSCURO ARE TWO POINTS 
WHICH HAVE BEEN DEFINITIVELY FIXED BY SUBSE- 
QUENT AGREEMENT OF THE PARTIES. 

(1) Cerro Brujo is the point of common boundary of 
Guatemala, Honduras and El Salvador. 

This is so because of article 16 of the treaty of 
August 1, 1914 between Guatemala and Honduras. 
(H. Note of August 27, 1918, pp. 30-31.) 

The article in question stipulates : 

"The high contracting parties declare that 
they recognize as valid the work carried out up 
to this date by the mixed boundary commission 
in virtue of and in accordance with the conven- 
tion signed in this city on the 1st of March, 1895, 
by the plenipotentiaries of both nations." 



96 

The treaty of 1895 had provided for a mixed 
boundary commission which was to begin its studies 
and "make upon the frontier all the surveys, opera- 
tions and labors, having as a meeting place the town of 
Ocotepeque (Art. 2). The mixed commission was or- 
ganized and met from time to time in the years 1908 to 
1910 and recorded its proceedings by minutes. In 
minute No. 6 of July 16, 1908, is the following memo- 
randum of agreement, pp. 160-161 : 

"It was agreed to record that . . . Cerro 
Brujo is the particular name of that which 
marks the common terminus of the three Re- 
publics . . . The mixed commission for de- 
termining the boundary between Guatemala and 
Honduras agreed also to accord a vote of thanks 
to the Government of El Salvador for the good 
will with which it consented to collaborate in 
the work of fixing the aforesaid boundary point, 
and for the courtesies and attentions which it 
has seen fit to extend to the commissioners dur- 
ing their entire stay in Salvadorian territory." 

The authority of the Guatemalan engineer Urrutia 
was produced in a telegram from Guatemala City of 
July 3, 1908, to recognize Cerro Brujo as the meeting 
point of the three Republics. 

In considering the general aspects of the treaties of 
1895 and 1914 we have had occasion to demonstrate 
that the agreement thus reached by the boundary com- 
missioners of the high contracting parties as to the 
location of the terminal boundary at Cerro Brujo, is 
absolutely binding upon them in the present Mediation. 



97 

Cerro Brujo, as thus recently determined, in point 
of fact substantially accorded with the uti possidetis of 
1821. It is quite near Atescatempo which is stated in 
the Guatemalan Boundary Instructions of 1844 as the 
"point where the three territories of the three states of 
Guatemala, Honduras and El Salvador meet". (H. 
Exh. XVII A, p. 5.) 

(2) Cerro Obscuro has also been definitively fixed as a 
point of the boundary. 

Upon this mountain as a boundary point agreement 
was reached by the mixed boundary commission at 
their meeting of March 7, 19 10. (Minute No. i'/, 
Tratados Vigentes: Primera Parte, p. 211 et seq.) 
The agreement is binding upon the parties for the 
reasons given above as to Cerro Brujo. 

(3) The line from Cerro Brujo through Cerro Obscuro 
to the Portillo de Caulotes or Coyoles is demarcated in de- 
tail by evidence of several varieties submitted by Honduras 
in the present Mediation. The evidence likewise supports 
Honduranean possession behind the line. 

(a) Land titles. 

Guatemala's Instructions to her boundary commis- 
sioner in 1844, after indicating how the initial monu- 
ment was to be set near Atescatempo, in the point of 
common boundary of the three republics, expressly 
recommended that the line be sought by reference to 



98 

the boundaries of haciendas lying along the frontier 
(H. Exh. XVII A, Sec. 6): 

"Sec. 6. In the above manner you shall con- 
tinue successively along the frontier line be- 
tween state and state, seeking on one side and 
the other either a village or a hamlet or a 
hacienda (estate) marking the division . . . 
You will arrive at the valley of Copan . . ." 

In our consideration of the evidence in its general 
aspects we have had occasion to show that land grants 
of the Crown domain are clearly admissible in evidence 
under the provisions of the treaty of 1914 and furnish, 
in the light of the precedents of other boundary dis- 
putes, one of the most satisfactory and conclusive forms 
of evidence to demarcate the line. 

Starting at Cerro Brujo and proceeding northward 
along the line of possession, are the following hacien- 
das forming an unbroken wall to Portillo de los Coyo- 
les or Caulotes, all granted and held as within Hon- 
duras : 

1885. — Monte Cristo, granted to Ramon Morales. 
Bounded by Pefia Quemada, Malcotal, Chucte, Chuc- 
tal and, on the west, by lands of Guatemala at Cerro 
del Pelon. {Land titles, p. ix.) 

1875. — Peha Quemada, granted to Celestino Car- 
ranza. Bounded by Las Granadillas and Monte Cristo. 
{Idem, p. ix.) 

1878. — Las Granadillas, granted to Celestino Car- 
ranza. Bounded by El Comedero, Pefia Quemada, 



99 

Chuctal and Mo j anal, and, on the west, by lands of 
Guatemala. (Idem, p. ix.) 

1876. — Comedero, granted to Eleuterio Mata. 
Bounded by Ejidos (Commons) of Esquipulas, Grana- 
dilla and Mojanal, Chaguiton. (Idem, p. x.) 

1839. — Chaguiton. Bounded by San Cayetano Sese- 
capa, El Comedero and Las Hojas. (Idem, p. x.) 

1677. — San Cayetano de Sesecapa, measured in 
favor of J. Mendes in 1677; newly denounced in 1731 
and granted in 1738 to Ignacio Pineda Cabrera. 
Bounded by Chaguiton, Barbasco y Brea. (Idem, 

p. 1.) 

1702. — Barbasco y Brea — situate in the valley of 
Sesecapa, granted to Antonio Erazo. Bounded by San 
Cayetano Sesecapa, measured in 1677 (Honduras); 
and Miramundo (Guatemala) measured in 1794. 
(Idem, p. 6.) 

1863. — Mecatal, measured in 1863; granted in 1864 
to Anselmo Dubon, bounded by La Brea and Barbasco, 
Ejidos (commons) de Merendon, Pozas and Mira- 
mundo. (Idem, p. 15.) 

1836. — Ejidos (commons) of Merendon, granted to 
the Village of Jute. Bounded by Mecatal, Pozas, and 
Brea. (Idem, p. 22.) 

1857. — Joconal, measured in 1857 and granted in 
1877 to Juan B. CoUart. Bounded by Agua Caliente 
and Los Planes, Ejidos (commons) of Merendon, 
Playton and Remudadero y Pozas of Guatemala. 
(Idem, p. 26.) 



100 

1845. — Planes, o-ranted to M. V. Molina. Bounded 
by Joconal, Playon (Honduras) and Remudadero. 
(Idem, p. 30.) 

1846. — Leonera, granted to M. Castejon. Bounded 
by Sulayito, Playon (Honduras) and Curaren. (Idem, 
p. 35.) 

1848. — Sulayito, granted to C. Aguilar. Bounded 
by Cuchilla del Tambor, Los Descombros, Curaren and 
Leonera. (Idem, p. 39.) 

1873. — Cuchilla del Tambor, granted to J. D. Roque. 
Bounded by San Francisco de Formax, Los Descom- 
bros and Sulayito. (Idem, p. 41.) 

1847. — San Francisco de Formax, granted to Gre- 
gorio Lugo. Bounded by Estancia de San Nicolas, Los 
Hornillos, Cuchilla del Tambor. (Idem, p. 46.) 

1730. — Potrero, granted to B. Pinto. Bounded by 
Estancia San Nicolas, San Nicolas Tolentino, Tapesco 
de Avila. (Idem, p. 77.) 

Contiguous to and behind these haciendas, there are 
the following also in Honduranean territory : 

1882. — Malcotal, granted to Braulio Cuestas. 
Bounded by estates Montecristo and Chucte. (Land 
Titles, p. xi.) 

1864. — Chucte, granted to Francisco J. Carranza. 
Bounded by Montecristo and Malcotal. (Idem, p. xi.) 

1854. — Chuctal, granted to Coronado Moreira. 
Bounded by Montecristo, La Granadilla and Mojanal. 
(Idem, p. xi.) 



101 

1834.— Mojonal, granted to Coronado Moreira. 
Bounded by La Granadilla, Comedero and Chaguiton. 
(Idem, p. xi.) 

1834,_I^as Hojas, granted to Andres Portillo. 
Bounded by Chucte, Chuctal, Mojanal and Chaguiton. 
{Idem, p. xii.) 

1836.— Playon, granted to Mateo Villeda. Bounded 
by Los Planes and Leonera. (Idem, p. xiii.) 

1878.— Cuajo Seco, granted to Eleuterio Ramirez. 
Bounded by Playon and Sesesmiles. (Idem, p. xiii.) 

1878.— Sesesmiles, granted as ejidos (commons) to 
Playon. Bounded by El Playon, Curaren and Planadas. 
(Idem, p. xiii.) 

1876. — Curaren, granted as ejidos (commons) to 
the town of Leonera. Bounded by Leonera, Sulayito 
and Planadas. (Idem, p. xiv.) 

1884.— Planadas, granted as ejidos (commons) to 
San Jorge. Bounded by Sesesmiles and Curaren. 
(Idem, p. xiv.) 

1895. — Los Descombros, granted to Esteban Mejia. 
Bounded by Sulayito, Cuchilla del Tambor, San Fran- 
cisco Formax and Planadas. (Idem, p. xiv.) 

(b) The evidence of a political and judicial character is to the 
same effect. 

The following instances of acts of administrative 
and judical authorities of Honduras and Guatemala, 
which are extant, confirm the line as established by the 
land titles : 



102 

1582. — Report of Governor Contreras Guevara of 
Honduras. He mentions Gracias and Tencoa as with- 
in his jurisdiction. {Supra, p. 32.) 

1723. — Report of Rodesno, Old or of the Audiencia. 
In his report to the King, Rodesno mentions Gracias 
and Tencoa as within the province of Gracias, Hon- 
duras. {Supra, p. 67.) 

1782. — Commission of the Captain General of 
Guatemala, Matias de Galvez, issued January 7 at the 
Hacienda dc la Majada, appointing Domingo de Claros 
Director of the road from Omoa to Guatemala and 
Governor of the town of Jigua and of the new town to 
be founded on the Hacienda del Descanso. The com- 
mission recites that "in order that it shall be effective, 
it shall be made known to the Governor of this prov- 
ince [meaning Honduras] and the Lieutenant of the 
District of Gracias". Thus, besides shownng that the 
estates and towns mentioned (which are situated in the 
northern portion of the sector here under review) were 
in Honduras, we here have recognition by the chief 
executive of the Captaincy General of the fact that they 
lay in the District of Gracias a Dios, in that province. 
(H. Exh. XIX.) 

1784. — Jigua and San Antonio del Descanso. The 
director of these places appointed under the commis- 
sion mentioned above appealed to the president of the 
Audiencia stating that "the commissary of the town 
of Ouesalica, valley of Bento, who was appointed by 
the Lieutenant of Gracias not only wants to exercise 
jurisdiction in the aforesaid towns but even over my 
person, which does not seem to be proper in view of 
the commission which your court has issued to me, 
whereas the said commissary is appointed by the 
Lieutenant of Gracias". Thus a question of juris- 



103 

diction was raised, and the Audiencia, after hearing 
the SoHcitor General, decided in favor of the Lieuten- 
ant of Gracias, stating in its opinion that the matter 
had "ah-eady been decided by decree of Your Excel- 
lency [meaning the Captain General] of October 20th 
last. In consequence your Excellency will please order 
that there be issued a communication directing him to 
limit his powers to the pure commission of developing 
these towns through the economic and protective media 
granted to him in his commission, without prejudice 
to the ordinary jurisdiction of the judge of the district, 
etc." — This constitutes a formal adjudication by the 
audiencia, the highest court, that these places were in 
the jurisdiction of Gracias, province of Honduras. 
(H. Ex. XIX.) 

1793. — Judicial. Sesecapa Valley, Ocotepeque, 
Llano Grande, Jicaro Hueco, Sensenti and Jute. This 
is a record in a criminal proceeding had before the 
court of first instance of Sensenti (Honduras) rela- 
tive to a crime committed in Sesecapa Valley at the 
place called Llano Grande and showing in the course 
of said proceeding the exercise of jurisdiction by the 
court of Sensenti in all of the places above mentioned. 
{Land titles, Judicial documents, p. 232.) 

1804. — Report of the GoYernor-Intendente of Hon- 
duras, Don Ramon Anguiano, on the state of his prov- 
ince (supra, p. 68). In the District of Gracias are 
mentioned San Antonio del Descanso, Yntibuca, 
Camasca, Quesalica. 

(c) The ecclesiastical evidence is to the same effect. 

- In Exhibit XXV (No. 20 bis.), filed by Honduras, 
on October 24th, 1918, thirteen ecclesiastical docu- 



104 

ments are set forth, eight of which correspond to the 
years 1787-1788, that is to say, the Colonial Period, 
and five to the years 1821-1839, covering the period of 
early independence and of the Central American 
Federation. These documents all show positive acts 
of ecclesiastical jurisdiction by Honduranian bishops 
and clergy in the section of the line under discussion. 
They are as follows: 

1787. — San Sebastian la Hermita. This is an ap- 
plication by the Bishop of Comayagua (Honduras) to 
the Captain General of Guatemala for an order direct- 
ing the removal of certain Indians properly belonging 
in Guatemala Province, who had settled in San Se- 
bastian la Hermita, Honduras. The petition was 
granted. 

1787. — Petoa, San Francisco, Gracias a Dios, and 
San Marcos Valle. This is a record of the marriage 
of L. Z. and A. M. D., residents of Petoa, in the bishop- 
ric of Comayagua (Honduras), showing that ecclesias- 
tical proceedings were had in all four places above 
mentioned. 

1787. — Petoa. This is a record of the marriage of 
F. I. M. and R. A., similar to the preceding one. 

1787. — Gracias a Dios. This is a record of the mar- 
riage of J. T. and L. L., similar to those preceding. 

1787. — Valle de Las Flores in the parish of Gracias. 
This is a record of the marriage of V. N'.' and L- P., 
similar to those preceding. 

1787. — Llanos in the District of Ouesalica. This 
is a record of the marriage of G. C. and L. G., similar 
to those preceding. 



105 

1787. — Quesalica. This is a record of the mar- 
riage of V. P. and J. R., similar to those preceding. 

1788. — Quesalica. This is a record of the mar- 
riage of J. T. and L. L., similar to those preceding. 

1788. — Petoa. This is a proceeding for the annul- 
ment of a marriage had before the ecclesiastical au- 
thorities of the bishopric of Comayagua, on the petition 
of D. S. of the parish of Petoa. 

1791. — Report of Fray Fernando Candinanos, 
Bishop of Comayagua, relative to his pastoral visit 
throughout the diocese. {Supra, p. 82.) Among other 
places listed are Comayagua, San Pedro Sula, Gracias, 
Choluteca, Tencoa, Petoa, Ocotepeque and Quesalica. 
The Bishop states the number of confirmations 
and other ecclesiastical acts which he performed 
in each parish, amounting to several thousand all told. 

1811. — This is a proceeding on the petition of M. 
S., addressed to Bishop-Governor Manuel JuHan Rod- 
riguez del Barranco of Comayagua, for the grant 
of a tract of land "named La Labor, also known as 
Quequesque, within the jurisdiction of this bishopric" 
which petition was granted. This shows the exercise 
of ecclesiastical jurisdiction at La Labor by the Bishop 
of Honduras. 

1815. — Cucuyagua. This is a record of the pro- 
ceedings had on the marriage of B. L. and F. F., resi- 
dents of Cucuyagua, beiore the Vicar General of the 
bishopric of Comayagua (Honduras). 

1822. — Cucuyagua. This is a record of the mar- 
riage of F. M. and M. A. C, similar to those preced- 
ing, with the added circumstance that F. M. in his 
petition states that he formerly lived In Chiquimula, 



106 

Guatemala. It also contains a certificate from the 
priest of Chiquimula, addressed to the parish priest 
of Cucuyagua in answer to the latter's request for in- 
formation as to the antecedents of the said F. M. 

1829. — Gracias. This is a record of the marriage 
of J. T. C. and M. D. C, similar to those preceding. 

1834. — Petoa. This is a record of the purchase at 
public sale by one A. A. of the tithes of Petoa, under 
an instrument executed before Lino Matute, notary 
public of the General Board of Tithes of Comayagua, 
dated March 19th of that year. 



V. 

THE COPAN REGION WAS WITHIN THE LIMITS OF 
THE INTENDENCIA OF HONDURAS IN 1821. 

The Copan Valley, in which were situated the 
ancient ruins of Copan, furnished a landmark which 
was well known in the colonial period. In 1576 Garcia 
de Palacio, oidor of the Audiencia, as we have already 
adverted {supra, p. 30), visited and described the 
ruins specifically stating that they lay in Honduras. 
Towards the end of the period the valley — Los Llanos 
— had become famous for the excellent tobacco there 
produced and the tobacco industry was a source of con- 
siderable revenue to the government. See Governor 
Anguiano's Report (1804); Juarros (1808), op. cit., 
vol. I, p. 43; Mendez (1821), Memorial, Peralta ed., 
p. 249. These authorities place Copan and Los Llanos 
in the subdelegation of Gracias a Dios, Honduras. 



107 

The valley was throughout colonial times recognized 
as near the boundary line between Honduras and Guate- 
mala. We turn now to the several varieties of evidence 
which establish that it lay within Honduras. 

(1) The legislation of the Spanish Kings and the Cortes 
is confirmatory. 

It has already been noted that upon the extension 
to the Kingdom of Guatemala of the Ordenansa de 
Intendentes of New Spain, the Province of Honduras 
was erected into an Intendencia with all the territory 
of the diocese of Honduras, except Omoa (cedula of 
July 24, 1791 ) ; Omoa being later restored by the cedula 
of 1818 to the direct jurisdiction of the Intendente. 
It has also been shown in general terms that the eccle- 
siastical, and therefore the political, jurisdiction of Hon- 
duras included the subdelegation of Gracias a Dios 
(supra, pp. 79-83). That the Copan Valley lay within 
Gracias a Dios is shown by the several varieties of evi- 
dence herein considered. 

(2) The acts of the Governors, and later the Intendentes, 
and of other officials of Honduras establish Honduranean 
jurisdiction over the Copan region. 

(a) The following evidence of a judicial nature has been filed 
by Honduras with the Honorable Mediator: 

1764. — Certain testamentary proceedings in the 
administration of the two Haciendas, Caparja and 
San Jose Copan, in the Copan Valley, were had before 
the Lieutenant Governor of Gracias in the province of 
Honduras. (Land Titles, p. 211.) 



108 

1766. — In testamentary proceedings relative to the 
haciendas of Llano Grande or Sesesmiles and the 
haciendas of Hornillos and Petrero, which had been 
instituted originally at Chiquimula, in Guatemala, 
where the testator resided, the judge of Chiquimula 
transferred the proceedings to the court at Gracias in 
Honduras. (Idem, p. 215.) 

These haciendas are in the Copan region and the 
act of the local judge of Chiquimula is highly persua- 
sive with reference to the jurisdiction of the Governor 
of Honduras. 

1780. — A parish priest at Jocotan, in Chiquimula, 
brought a replevin proceeding for a cow before the 
judge at Gracias, in which he alleged that the cow was 
on the haciendas of Jobo and San Antonio in the Copan 
Valley. (Idem, p. 225.) 

1799. — The judge of Sensenti took judicial cogni- 
zance of a proceeding to collect an annuity charged 
upon the haciendas of Estanzuela, Estancia and Gila, 
in the Valley of the Copan for the maintenance of 
chapels. The petitioner was a presbyter of the Arch- 
bishop of Guatemala, resident in Chiquimula, who left 
his own local jurisdiction to institute the proceedings. 
(Idem, p. 233.) 

1803. — In certain testamentary proceedings con- 
cerning the hacienda of Llano Grande, in the Copan 
region, which had been begun in Chiquimula because 
the decedent had been resident there, the Chiquimula 
court referred the matter to the court at Sensenti in 
Honduras as follows : 

"Having been informed that in the Valley 
of the Copan within your [Sensenti] jurisdic- 



109 

tion there is a hacienda named Llano Grande 
which remains to be inventoried and appraised, 
I, therefore, request . . ." (Idem, p. 237.) 

1804.— Testamentary proceeding in the administra- 
tion of the haciendas of Gila and Casapa in the Copan 
Valley before the judges of Sensenti and Copan. 
(Idem, p. 242.) 

1812.— In this year Presbyter Ramon Lugo, a resi- 
dent of Esquipulas in Chiquimula crossed over into the 
Intendencia of Honduras and brought suit before the 
Judge of Sensenti to collect annuities charged on the 
Haciendas of Llano Grande and Copan in the Copan 
Valley to maintain chapels. The complaint was filed 
against the owners of the two Haciendas and process 
was issued by the court to summon them to answer. 
The docket clearly shows that both Haciendas lay in the 
Copan Valley within Honduras. (Idem, p. 244.) 

1813_ — 'This was a criminal suit filed in the court 
at Sensenti accusing of robbery one Lugo, residing on 
the Hacienda of Estanzuela in the Copan Valley. The 
record shows that by reason of an impediment to juris- 
diction by the Judge of Sensenti, the Audiencia at 
Guatemala City remitted the complaint to the Inten- 
dente of Honduras with orders to forward it to the 
Judge of the next nearest district. The Intendente 
issued an order to the Judge of Copan. (Idem, p. 246.) 

Here we have the express recognition of the highest 
judicial authority in the Kingdom of Guatemala, namely 
the Audiencia, that the Copan Valley lay in the Inten- 
dencia of Honduras. 

Acts of political jurisdiction such as these, even 



110 

when not expressly recognized by the colonial officials 
of the Andiencia of Guatemala, are of high probative 
value. The Governor of Honduras and his subordinate 
officials had exclusive jurisdiction in the Province or 
Intendencia of Comayagua. The Code of the Indies 
(Recop. B. V, t. 1, 1. 1.) after describing the colonial 
administrative system, commanded the officials not to 
step beyond the limits of their jurisdiction, as follows: 

"And because one of the best means by 
which good government is facilitated is the dis- 
tinction in the boundaries and lands of the 
province, districts, partidos and capitals . . . 
we order and command the viceroys, audiencias, 
governors, corregidores and alcaldes mayores to 
observe the limits of their jurisdictions as they 
may have been prescribed by the laws of this 
book, the titles of their offices, the provisions of 
the superior governors of the provinces, or by 
use and legitimate customs introduced, and they 
shall not intermeddle to use or exercise their 
said offices nor acts of jurisdiction in the parts 
or places where their territories do not 
reach ..." 

It may be noted that the law confirmed validity of 
boundaries established "by use and legitimate customs 
introduced". 

In three of these judicial records (in the years 1766, 
1803 and 1813) we have positive recognition by the 
Guatemalan judicial authorities — under circumstances 
requiring them to decide the point of jurisdiction — 
that the Copan region lay in Gracias a Dios, Honduras. 



Ill 

(b) Land titles. 

Honduras has produced fourteen titles to haciendas 
situated in the Copan region, from which it appears, as 
with those lying behind the first sector of the frontier, 
that the petitions therefor were entertained by the 
local officials of Gracias a Dios, the haciendas were 
measured and demarcated by them. We have already 
averted to the legislation under which these grants 
were in due course confirmed by the Audiencia at Gua- 
temala City. A list of the titles follows : 

1628. — Estancia de San Nicolas, granted to Do- 
mingo Licarraga. Bounded by Comedero, San Miguel 
de Copan, formerly known as Petapa, wherein are sit- 
uate the ruins of Copan, Los Hornillos and San Fran- 
cisco de Formax. (Land titles, p. 61.) • 

1722. — Los Hornillos, granted to Josef a Jimenez de 
Lugo. Bounded by Estancia de San Nicolas, San 
Francisco de Formax, San Miguel de Copan or Petapa, 
Carrizalon. (Idem, p. 81.) 

1729. — Petapa or San Miguel de Copan, measured 
in 1729, re-measured in 1867. In this Hacienda are 
situate the ruins of old Copan and the present day town 
of Copan. The Copan River forms part of its south- 
ern and eastern boundary. (Idem, pp. 121, 126.) 

1875. — Carrizalon, granted as Ejidos (commons) 
of Santa Rita or Cachapa. Bounded by San Miguel 
de Copan or Petapa, and Llano Grande. In this Haci- 
enda is situate the town of Santa Rita or Cachapa. 
(Idem, p. XVL) 



112 

1728. — San Nicolas Tolentino, granted to Miguel 
Pinto de Amberes. Bounded by Tapesco de Avila, 
measured in 1754, and El Salto measured in 1730. 
{Idem, p. 102.) 

1737. — Tapesco de Avila, granted to Juan de Cas- 
tro. Bounded by Coyoles, San Nicolas Tolentino and 
Potrero. {Idem, p. 89.) 

This title deed contains the following recitals: 

"In this estate of Potrero de la Vega on the 
line of the province of Gracias a Dios, bordering 
on the province of Chiquimula de la Cierra, 
with a permit from the Lieutenant of Copan 
Valley dated February 22, 1754, I, Vicente 
Machorro, sub-delegate judge of land titles of 
the border provinces under ample commissions 
for that purpose conferred upon me by his 
Highness, Dr. Jacobo de Huerta y Cigala of 
His Majesty's Council, his Oidor (Judge) 
. . . one belonging to the provinces of Zacapa 
and Chiquimula de la Cierra issued on the 16th 
of October of the past year, 1751, and the other 
in which the commissions are amplified for the 
boundaries of the border provinces dated Aug. 
23, 1752, and both attested in Guatemala by 
Domingo Antonio de Ortis, Secretary, etc., of 
Government and War, do state that for the pur- 
pose of measuring these lands which are to be 
measured, / arrived in company of the witnesses 
hereto . . . on these royal public lands 
which are named Tapesco de Avila . . . 
There is a hillock of moderate height at the 
edge of the large river Copan ... on said 



113 

hillock I ordered a pile of rocks to be placed, 
which was the first landmark of this measure- 
ment ..." {Idem, p. 98; H. Ex. X.) 

1730. — Salto, granted to Pasqual Madrid. Bounded 
by San Nicolas Tolentino, Tapesco de Avila and Jutes. 
{Land titles, p. 107.) 

1736. — Chaguites, granted to Antonio de Paz Mon- 
teros. Bounded by Jutes, and Pexja measured in 1741. 
{Idem, p. 199.) 

1722. — Jutes, granted to A. Arbizu. Bounded by 
Chaguites, Llano Grande, El Salto and Tapesco de 
Avila. {Idem, p. 111.) 

1729. — Llano Grande, granted to Diego Jimenez. 
Bounded by Jutes and Salto. {Idem, p. 144.) 

1781. — Sesesmiles, granted to M. M. Manchame. 
Bounded by Llano Grande, San Miguel de Copan or 
Petapa and Lomas de Agua Fria. {Idem, p. 149.) 

1888. — Lomas de Agua Fria, granted to Francisco 
Castillo. Bounded by Sesesmiles, Llano Grande, 
Chaguites and Jutes. {Idem, p. 148.) 

1851. — Managua, re-measured and granted in 
1885 to Francisco Fiallos. Bounded by Sesesmiles and 
Lomas del Agua Fria. {Idem, p. 114.) 

1896. — Cerron de Llano, granted to Demetrio 
Hernandez. Bounded by San Miguel de Copan or 
Petapa, Llano Grande and Salto. {Idem, p. XV.) 

1628. — Obrage de San Jose, granted to M. Pinto 
Amberes. We have been unable to fix its exact location 
by metes and bounds, but the following extracts from 
the deed are pertinent. {Idem, p. 76.) 



114 

"Measurement. And the said Indians of 
said village of Copan having been cited to 
attend at said measurement ... it was 
made in the manner following: At said Obraxe 
de San Josephe zvJiich is zvithin the limits of the 
village of Copan in the jurisdiction of the city 
of Gracias a Dios, on the second of November 
in the year one thousand six hundred and 
twenty eight, in the presence of nie, Alfere:^ 
Baltasar Sapena, Commisary Judge for the 
composition of lands in this jurisdiction . . . 
being at the edge of the large river of Copan 
at the cacaguatales of the Indians in 
front of said village of Copan, Juan Beserra 
the surveyor appointed therefor commenced the 
measurement of a caballeria of land. . . ." 

The western line of the Hacienda of Caparja served 
also as the boundary between Honduras and the Guate- 
malan alcaldia mayor of Chiquimula. Honduras has 
not obtained a copy of the title; but has introduced in 
evidence the testamentary proceedings had in 1764 by 
reason of the death of the owner of that Hacienda and 
the Hacienda of San Jose Copan. (Land Titles, p. 
211.) A reference from Guatemalan sources to the 
effect that the Hacienda lay on the boundary, will be 
found in section seven below. This line was in sub- 
stance recognized by the boundary commission under 
the treaty of 1895 as forming the modern line of pos- 
session (Minute No. 14, of Feb. 23, 1910, Tr at ados 
Vigentes: Primera Parte, p. 186), and binds the High 
Parties pursuant to article 16 of the convention of 1914. 



115 

(c) Miscellaneous evidence of administrative jurisdiction. 

In addition to the official reports of the Oidor, 
Garcia de Palacio (1576), Governor Anguiano (1804) 
and Deputy Mendez (1821), already cited to show that 
the Copan region lay in Honduras, the following in- 
stances of administrative activity by Honduranean of- 
ficials may be adduced: 

1582. — Report to the King of Governor Contreras 
Guevara. {Supra, p. 32.) It mentions Copan as lying 
in Gracias a Dios. 

1782. — Commission by the Captain General Galvez 
as to the upkeep of the road from Omoa to Guatemala 
and the founding of a town on the Hacienda of San 
Antonio del Descanso. (H. Exh. XIX.) An endorse- 
ment on the commission shows that the proposed town 
was to be located at the foot of the Copan mountain. 
The document itself directs that the entrance and exits 
of the said mountain be settled, showing that both sides 
of the range, which at this point is known as Grita 
or Gallinero, belonged to Honduras. 

(3) The ecclesiastical evidence is to the same effect. 

In the report of Fray Fernando Cadinanos, 
Bishop of Comayagua, dated 1791, hereinbefore cited 
at page 82, Sensenti, which is in the Copan region, is 
listed among the places in his diocese which he visited 
and where he performed ecclesiastical functions, such 
as confirmations and the like. 

Under date of October 5th, 1867, the Archbishop 
of Guatemala addressed a communication to the 
Bishop of Comayagua, Honduras, requesting the latter 



IIG 

to obtain information regarding J. D. A., a resident of 
the parish of Esquipulas, Guatemala, formerly ''resid- 
ing at a place called La Estanzuela belonging to 
Cucuyagua in the diocese of Your Grace" in connec- 
tion with the marriage of the said J. D. A. to R. C. J., 
which had taken place in Esquipulas three years be- 
fore. (H. Exhibit XXV, No. 32.) 

A similar communication from the Archbishop of 
Guatemala dated July 15th, 1869, was addressed to the 
Provisor and Vicar General of the bishopric of Hon- 
duras, requesting information relative to M. S. P. 
"born at Ocotepeque in your diocese and a resident for 
four years at El Playon in the jurisdiction of Sen- 
senti." (H. Exhibit XXV, No. 33.) While it is not 
claimed that these two ecclesiastical documents, dated 
1867 and 1869 respectively, are primary evidence that 
Cucuyagua, Playon and Sensenti were in the bishopric 
of Comayagua or Honduras in colonial times, they are 
persuasive on that point because of the well-known 
conservatism of the Church, the zealous regard which 
it entertains toward marriage and the safeguards with 
which it surrounds its members in entering upon that 
state. 

The Guatemalan Representative has produced two 
documents which indicate that in the years 1776 (prop- 
erly 1768-1769) and 1784 Copan was included in the 
diocese of Guatemala proper. (G. Note, Sept. 21, 
1918, "Index", p. V.) The first document contains 
the description and map of the Parish of Jocotan, 
Guatemala, taken from the visit of the Archbishop 



117 

Cortes y Larraz reciting that Copan lay in the parish 
mentioned. The other document is a table of towns 
within the parish of Zacapa, Guatemala, taken in turn 
from the general table of the archbishopric compiled 
by Dr. Francos y Monroy in 1784, which placed Copan 
in that parish. The two documents are entirely re- 
concilable with the Honduranean evidence. By 1808 
Copan had again been transferred to the Diocese of 
Honduras. Juarros in his table of parishes in the 
Diocese of Guatemala proper, does not mention Copan ; 
and as to that table he expressly states that it is based 
on the report of Archbishop Cortes y Larraz and the 
maps of Dr. Francos y Monroy, revised to date (op. 
cit., vol. I, p. 94) : 

"The table which we present we have en- 
deavored to adjust to the state which the cura- 
cies of this Diocese [Guatemala] have at the 
present day; since although it has been based 
upon the records of the visit of the Archbish- 
opric, which the Most Illustrious Dr. Pedro 
Cortes y Larraz made in the years 1768-1769 
and upon the maps of the curacies which the 
Most Illustrious Dr. Cayetano Francos y Mon- 
roy ordered prepared, we have omitted therein 
the curacies extinguished and added those newly 
created." 

The point is settled beyond a peradventure by the 
following further passage in Juarros {Idem, p. 153 of 
vol. II, published in 1818) : 

"This place [Copan] which at the present 
day only has the title of Valley, is situated on the 



118 

dividing line of the Provinces of Chiquimula 
and Comayagua, so that at times it has' been of 
the jurisdiction of the former and at times, as 
now, of the latter". 

(4) The Treaty of August 14, 1839 recognizes that the 
Copan region lay in Honduras. 

For completeness, reference is again made to the 
admission by Guatemala involved in this treaty. 
(Supra, p. 86.) 

(5) The treaty of July 19, 1845, and Guatemala's In- 
structions to her Commissioner thereunder, are to the same 
effect. 

We have already had occasion to note in discussing 
in its general aspects the evidence supporting the line 
of uti possidetis of 1821, that by article 13 of this treaty 
Honduras and Guatemala recognized that their common 
boundary was that dividing the diocese of each, which 
boundary they undertook to run by Commissioners to 
be appointed for the purpose. 

In the Instructions handed by the Guatemalan Gov- 
ernment to its Commissioner there is the clearest admis- 
sion that the Copan Valley fell on the Honduranean 
side of the boundary. Since the problem of the Honor- 
able Mediator is one of historical reconstruction of the 
situation in 1821, he is entitled to consider these Instruc- 
tions, as contemporary testimony of great persuasive- 
ness. They were prepared by the distinguished Guate- 
malan publicists, Marure and Larreynaga, whose per- 
sonal knowledge stretched back to the dosing years of 



119 

the colonies; and they have added weight as evidence 
because they are in the nature of an admission by 
Guatemala against interest. On the portion of the 
line hereunder examination the Instructions read as fol- 
lows (H. Exh. 17A, pp. 7, 8): 

"Sec. 6. In the above manner you shall con- 
tinue successively along the frontier line between 
State and State, seeking on one side and the other 
either a village or a hamlet or mi estate (haci- 
enda) marking the division . . . You will 
arrive at the valley of Copan. This valley is the 
divisor between Guatemala and Honduras, ac- 
cording to Father Juarros, vol. II, p. 153, and 
has belonged at times to the former and at others 
to the latter, just as has happened with other 
towns and provinces . . . Along Copan there 
passes a cordillera, which commences to the south 
of Mita, and which is commonly called Meren- 
don, and intersects the Motagua, and extends to 
the east of the port of St. Thomas, to enter cape 
Three Points, called Punta de Castilla or Mana- 
vique. The dividing line between Honduras and 
Chiquimula strikes this mountain before it (the 
mountain) intersects the Motagua, the line pass- 
ing through the north of the village or hamlet of 
Chucuyales, and it is a point which should be 
examined and marked out very scrupulously. 
This mountain^ which the English and French 
maps call "The Copan" and which is not marked 
continuously in that of Rivera, forms a land- 
mark towards Sensenti, but not in the rest of its 
course, for which reason it is necessary that the 



120 



commissioners shall fix precisely the interven- 
ing section. 

"From the point at Chucuyales, followino- 
the mountain to the Motagua, it forms a bound- 
ary . . ." 

If the Honorable Mediator will read the above ex- 
cerpt from the 1844 Instructions having before him the 
Arrowsmith map of 1826 and the Brue map of 1832 
mentioned therein (they have been reproduced by 
Honduras for this Mediation), he will be enabled to 
visualize the boundary in the Copan region as under- 
stood by Marure and Larreynaga, even though the 
maps, in the light of modern data, distort the general 
geography of the region and badly misplaces most of 
the towns therein. 

(6) The Guatemalan constitutions, legislation and acts 
of jurisdiction since independence are confirmatory. 

For completeness we refer again to the evidence 
furnished by the Guatemalan Constitutions of 1825 and 
1845. (Supra, pp. 38 and 61.) In addition to the 
Guatemalan statutes examined in our revision of the 
evidence of a general character supporting the Hon- 
duranean uti possidetis of 1821, we wish to draw atten- 
tion to a Guatemalan law which expressly declares the 
Copan region to lie in Honduranean territory. 

On January 16, 1834, the Guatemalan legislature 
passed a law providing for two scientific expeditions, 



121 



one to explore the ancient ruins at Tepam and Kiche 
in Guatemala and the other to explore the Copan ruins 
in Honduras. Art. 4 enacted : 

"The said expeditions shall be aided by the 
local authorities, who shall be strictly enjoined 
for that purpose; if that destined for Copan 
should have to enter, as is probable, upon the 
territory of Honduras, a communication shall 
be addressed to that Government calling atten- 
tion to the importance of the work, in order that 
it may cause orders to be issued for aiding and 
facilitating its object." (H, Exh. XIII, No. 
23.) 

Col. Juan Galindo, who headed the expedition to 
Copan found, as the Guatemalan legislature surmised 
would be the case, that the ruins lay in Honduras ; and 
accordingly he reported the fact in a note dated Copan, 
April 26, 1834, to his government. Guatemala in turn 
transmitted the note to the Government of Honduras 
requesting facilities for Col. Galindo. Such facilities 
were ordered. (H. Exh. XIII, No. 25.) In Col. 
Galindo's note to the Honduranean Government, there 
is an explicit reference to what he found to be the loca- 
tion of the boundary : 

"The dividing line between the States of 
Guatemala and -Honduras passes through the 
Hacienda of Caparja, four leagues before 
reaching this point (Copan) ; and so the relics 
of these ruins are entirely within the boundaries 
of this State [Honduras]". 



122 

The following instances of letters rogatory in civil 
suits and requests for extradition in criminal proceed- 
ings made by the Guatemalan authorities or Courts of 
those of Honduras after the boundary difficulties arose 
between the two countries are entitled to consideration. 
They are in nature of admissions by Guatemala 
against interest (H. Misc. Exhs.) : 

1851. — A petitioner residing at Esquipulas, Guate- 
mala, presented a claim with reference to the hacienda 
of Llano Grande before the court at Esquipulas. This 
hacienda is in the Copan Valley, west of the town of 
Copan. The Guatemala court transmitted the case to 
the Honduras court at Santa Rosa on the ground that 
the Honduras court had jurisdiction and the Guatemala 
court did not. 

1851. — A communication addressed from the 
''Office of the Commandant of Jocotan (Guatemala)", 
dated July 12, 1851, addressed to the Municipal Alcalde 
of Copan, stated as follows: "It being necessary to 
conduct tomorrow from this point to the interior of 
your state the prisoner G. C, whom the Corregidor of 
the Department of Chiquimula is transmitting at the 
request of the government of said state of Honduras, 
I hereby notify you in advance so that you may at once 
send someone to the boundary line for the sole purpose 
of receiving the aforesaid fugitive . . ." Jocotan 
is in Chiquimula, west of Copan. 

1857. — The judicial authorities of Esquipulas ad- 
dressed a communication to the Mayor of Copan "re- 
questing the apprehension of fugitives who were 
alleged to have taken possession of a part of the estate 
of Coyoles in the jurisdiction of Copan". 



123 

1857. — The Municipal Court of Esquipulas re- 
quested the Mayor of Casapa in Honduras for the ex- 
tradition of one D. P., a fugitive from justice of Guate- 
mala, who had been captured at Estanzuela, in the State 
of Honduras, "by the authorities of Copan;" "and that 
the fugitive is in custody at Casapa [Cachapa]". 

It may be noted that it is common in border states, 
where the central authorities are distant, and prompt 
means of communication are unavailable, for the border 
local authorities to deal directly with each other in 
extradition matters. 

1858. — The headquarters of the military district of 
the town of Esquipulas "requested the Alcalde of 
Copan to extradite a soldier who was said to be "at a 
place called Tigre Mountain, in your jurisdiction". 

1867. — Guatemalan officials from the President 
down requested the extradition of certain soldiers al- 
leged to be "in the town of Concepcion el Jute, in the 
hands of officials of Honduras". Concepcion el Jute, 
thus recognized as in Honduras, lies in the Copan 
region. 

(7) The cartographical and geographical data uniformly 
confirm the inclusion of the Copan region in Honduras. 

All the maps, from the earliest colonial times down 
to signature of the first boundary treaty of 1845 be- 
tween Guatemala and Honduras place the Copan re- 
gion in Honduras. This is true even of the modern 
maps, including those from Guatemalan sources, which 
indicate the Sierra del Merendon, also called the Es- 



124 

piritu Santo or Copan mountain range, as the boundary 
between Honduras and Guatemala.* 

In this connection the scientific expedition which 
the State of Guatemala sent in 1834 to explore the 
ruins of Copan, as in Honduras, may be recalled. 
{Supra, p. 121.) Besides Col. Galindo's note to the 
Guatemalan Government, asking it to obtain facilities 
for his expedition from the Honduranean Government 
because the ruins of Copan lay in Honduras, the Medi- 
ator may be referred to Col. Galindo's letter to the 

*It is not an exaggeration to say that the line of the Sierra del 
Merendon or Espiritu Santo which appears for the first time in the 
Arrowsmith map of 1826 and in other more modern maps, principally 
Guatemalan, has no better basis than an historical error into which 
Thompson fell in his Narrative of an Official Visit to Guatemala. At 
page 321 of this work, Thompson wrote: "Saturday, 9th July [1825]. 
Being anxious to procure a chart of the divisions of the Five States as 
newly established, I called on Valle, he being the most likely person 
to assist my views ; in this, however, I was not a little disappointed ; it 
is true that the demarcation had been determined by legislative enact- 
ment, but no map had yet been formed to illustrate the new arrangement. 
We accordingly took one of Arrowsmith's maps which I had brought 
with me, and pencilled out the divisions in question." Again at p. 450 : 
"A new division of the territories of these states has been made so as 
to give to each a due portion of sea-coast. The accompanying map 
which I planned with Don Jose de Valle, and is now first printed, will 
best show their respective boundaries." Elsewhere we have noted that 
Thompson was mistaken and that in point of fact no such law was 
ever passed. {Supra, p. 49, n.) While Thompson's book was published 
in London in 1829, Thompson returned to England from Guatemala in 
October, 1825 {Idem, p. 440) ; and without doubt he furnished Arrow- 
smith with the data covering the new boundaries which he supposed 
to have been enacted by the Central American Congress, because Arrow- 
smith's map of 1826 shows the same boundary between Guatemala and 
Honduras, of the Sierra del Merendon, called by him the Copan 
Mountains, as appears in the map facing Thompson's Narrative; and 
in both maps in an identical manner this boundary crosses the Motagua 
river shortly above its mouth in order to curve upwards and end inside 
of Cape Three Points. There is the further corroborative circum- 
stance that Arrowsmith was Thompson's geographer who in 1816 pub- 



125 

President of the American Antiquarian Society, giving 
the results of his expedition. From the Transactions 
and Collections of that Society (Cambridge, 1836, vol. 
II, p. 549), we quote the following reference made by 
Col. Galindo to the region here under discussion : 

". . . Copan has gradually fallen into 
decay; and is now reduced to a small hamlet, 
standing near where the brook of Sesemil falls 
into the Copan River, in the western suburb of 
the ancient city. This spot is within the modern 
State of Honduras, being four leagues to the 

lished the Atlas which accompanied Thompson's edition of Alcedo's 
Geographical and Historical Dictionary. It was undoubtedly this 1816 
Arrowsmith map which Thompson, as quoted above, had with him on 
his trip to Guatemala. 

A comparison of Thompson's map with Squier's Map of Central 
America of 1849 shows that Squier copied Thompson, although he fell 
into an additional error as to the location of the mouth of the Motagua 
River. This last error was corrected by Squier in the map accompanying 
his States of Central America (1858) ; but the other error showing 
the boundarj^ along the Espiritu Santo Mountains, or Sierra del Meren- 
don, was repeated, and thus by further copying, found its way into 
some of the later maps. Guatemalan geographers and the Guatemalan 
Government were not averse to adopting a boundary which so sub- 
stantially improved on the line given in the Instructions to its boundary 
commissioner in 1844. 

That Squier, who In general is of course a reputable authority, fell 
into an unconscious error, is plainly indicated by the fact that in the 
text of his States of Central America (p. 68) he says that Copan lies in 
Honduras, and his maps place Copan to the east of the Sierra del 
Merendon; whereas of course Copan admittedly lies to the west of 
this range. 

The Guatemalan Government may be taken to admit that there 
is no legal foundation iorJiie boundary of the Sierra del Merendon 
upon the principle of the uti possidetis of 1821, because its commis- 
sioners in Minute No. 17, dated March 7, 1910, in the proceedings for 
the demarcation of the line under the 1895 treaty, were reduced to 
urging this mountain range as the most available natural boundary 
between the two countries. (Tratados Vigentes de Honduras: Primera 
Parte, p. 227.) 



126 

eastward of the boundary with Guatemala, in 
latitude 14° 15' north, and longitude 90" 52' 
west from Greenwich." 

The Mediator may also be referred to Dr. Williams' 
Cartographical Report, at page 54, where there will 
be found a further account of Col. Galindo's expedition. 

As to the evidence of the location of the boundary 
line to the west of the Copan, which is contained in 
Stephens' Incidents of Travel in Central America, 
Chiapas and Yucatan (two volumes. New York, 1841), 
see the Honduranean Exhibit XIII, 24, and Dr. Wil- 
liams' Report, pp. 75-79. Stephens was sent to Central 
America by President Van Buren on a diplomatic mis- 
sion in 1839. 



VI. 

UPON THE PRINCIPLE OF THE UTI POSSIDETIS OF 
1821 HONDURAS IS ENTITLED AT LEAST TO THE LINE 
OF THE MOTAGUA RIVER FROM ITS CONFLUENCE WITH 
THE MANAGUA TO THE SEA VIA THE SAN FRANCISCO 
RIVER, WHICH FORMED THE CHANNEL IN THE 
COLONIAL PERIOD. 

The right of Honduras to this sector of the frontier, 
upon the principle of the uti possidetis of 1821, is estab- 
lished by the several varieties of evidence of a general 
character collected and discussed in point III. Here 
it is in order to call attention to the evidence referring 
to specific localities which confirms the fact of Hon- 
duranefan jurisdiction up to the Motagua River. In this 



127 

connection it has seemed advisable to collect and dis- 
cuss the evidence which indicates continued occupation 
of the region by Honduras since independence. Such 
evidence in itself involves the presumption that juris- 
diction was exercised by Honduras before independ- 
ence; in addition it bears upon the Honorable Medi- 
ator's practical problem of suggesting a compromise 
line. 

(1) The evidence of colonial administration supports 
this contention. 

Under this head attention is called to the following 
official documents: 

1545. — Report of Alonso de Maldonado, President 
of the Audiencia to the King, dated Puerto Cavallos, 
January 15 of this year, giving a list of offices which 
had become vacant in the Province of Honduras. The 
following paragraph is in point (H. Exh. XHI, 
no. 32) : 

"The list of the towns whose offices became 
vacant in Guatemala by the death of the Adelan- 
tado Your Majesty already knew prior to my 
departure and those in this Government of Hon- 
duras and Higueras which became vacant are 
as follows : In the municipal district of the city 
of Gracias a Dios, the towns of Tencoa, Jamala 
and Posta ; in the districts of the town of Coma- 
yagua, those of Tecosquin, Hexamini and 
Quorora ; and in the district of the town of San 
Pedro, those of Naco and Cogumba . . ." 



128 

1563. — Cedilla of September 8, 1563. This is the 
cedilla upon which the Representative of Guatemala 
has rehed in claiming that the boundary is the Hne of 
the Ukia River and Fonseca Bay. We have, we be- 
lieve, demonstrated in point I that so far as this cedida 
purported to inckide in the Province of Guatemala the 
territory to the west of this line, it was repealed by 
the cedida of May 17, 1564. Biit although the earlier 
cedula was repealed, it contains irrefragible evidence 
that San Gil de Buena Vista was a settlement in the 
Province of Honduras, which with the repeal of the 
cedula continued to remain in the jurisdiction of the 
Governor of Honduras. For the text of the cedula 
see pages 24-25 above. 

1582. — Report to the King of Contreras de Gue- 
vara, Governor of Honduras. (Supra, p. 32.) This 
official specifically states that Tencoa, which is the 
modern sub-district of Santa Barbara, was within his 
jurisdiction, as was also the town of Chapulco which 
lay near the eastern bank of the Motagua River below 
its confluence with the Managua River. 

1646. — Memorial of Diez de la Calle. (Supra, p. 
33.) In stating that Tencoa and Santo Thomas de 
Castilla lay within the Province of Comayagua (Hon- 
duras), Calle indicates that in the view of the Council 
of Indies the entire coast region between these two 
points was under the jurisdiction of the Governors of 
that Province. Between these two points of course lay 
the Motagua River. 

1684. — Report to the King of the Audiencia of 
Guatemala as to the collection of fines in criminal cases. 
See page 66 above, where it is shown that the district of 
San Pedro Sula, with the settlements of Omoa and 



129 

Amatique (the latter, of course, west of the Motagua 
River) were situated in the Province of Honduras. 

1714. — Real Cedula of April 30 of this year which 
recites that the Mosquito Indians in 1704 "invaded the 
town of Lemoa [Omoa], district of the Province of 
Comayagua, from which they carried away the In- 
dians of the vicinity, committing many sacrileges in 
the church." (H. Exh. XX.) 

1723. — Report of Oidor Rodesno to the Audiencia 
as to smuggling on the coast of Honduras. (Supra, p. 
67.) Rodesno places in Honduras all rivers and set- 
tlements east of Golfo Dulce. 

1744. — Report of Engineer Diez Navarro. (Supra, 
p. 67.) This is the first official document which men- 
tions the Motagua River as the western boundary of 
the Province of Honduras proper. 

1752. — Order of the Governor of Honduras to the 
Treasury officials at Comayagua to make payment for 
the construction of a brig on the Motagua River. (H. 
Exh. XXV, no. 6.) 

1770. — Cedula to the President of the Audiencia 
of Guatemala approving orders given by him during 
his visit to the Port of Omoa. The cedula mentions 
San Pedro Sula, Gracias a Dios and Tencoa as belong- 
ing to the government of Honduras; and it refers to 
the project for re-establishing a hacienda at Cuyamel 
in said government five leagues from Omoa. The 
Honorable Mediator will note that this hacienda lies 
along the Cuyamel which empties into the sea between 
Omoa and the Motagua River. (H. Note, June 22, 
1918, p. 13; H. Misc. Exh.) 



130 

1782. — Order of Matias Galvez, Captain General 
of Guatemala. (Supra, p. 102.) This order mentions 
Omoa in Honduras, as the terminal of the road to 
Guatemala through Copan whose maintenance was 
commanded therein. 

1804. — Report to the King of Gobernador-inten- 
dente Anguiano (supra, p. 68) which shows that the 
Intendencia of Honduras proper extended west as far 
as the Motagua River. 

1818. — Real Cedula of October 16 of this year ad- 
dressed to the Captain General and President of the 
Real Audiencia of Guatemela, which ordered: "that 
the said Port of Omoa remain immediately subject to 
the Government of Comayagua in the manner which 
it was before its aggregation to Guatemala, without 
prejudice to the authority which corresponds to you as 
superior Chief which you are of the province." (H. 

Exh. xn.) 

1821. — Report of Deputy Mendez (supra, p. 69) 
is to the same effect as the Report of Governor Angu- 
iano. 

1840. — Note directed by the Honduranean Cus- 
toms Official at Omoa to the Supreme Government of 
the State of Honduras dated July 29 of this year. 
This note shows that the mouth of the Motagua River 
was considered as in Honduranean jurisdiction and 
that the Customs Official of Omoa cleared vessels 
which proceeded upstream with goods destined for 
Guatemala and Salvador. The occasion for the note 
was the fact that the Guatemalan Customs Chief of 
Izabal had just presumed to clear a vessel arriving in 
the mouth of the river, instead of limiting himself, as 
had been the practice theretofore, to collecting a duty 



131 

of two per cent, on the goods destined for Guatemala 
and Salvador. The Omoa official suggested that his 
Government communicate with the Government of 
Guatemala to the end that the dispute be settled diplo- 
matically. (H. Exh. XXV, no. 21.) 

(2) The land titles are corroborative. 

In the region behind this sector there are only a 
few grants antedating the year of independence, be- 
cause the region was very thinly settled. In point of 
fact the colonial authorities maintained only such 
towns as were necessary to carry on the commerce of 
Honduras and Guatemala with Spain and to protect 
that commerce from piratical incursions. Reference 
is made in the following documents to land titled in 
Honduras : 

1536. — In this year Pedro de Alvarado, after 
taking over the government of Honduras on the invita- 
tion of the colonists made a distribution of lands in 
San Pedro Sula and also at Chapulco near the Motagua 
River below its confluence with the Managua. (H. 
Note, June 22, 1918, p. 10; Col. de docs, ineditos d3 
Indias, Vol. XV, p. 27.) 

1822. — Deed of sale of a parcel of land in 
Cuyamel dated Omoa, June 28 of this year, authenti- 
cated before the political chief and special delegate of 
the National Treasury of Honduras in that district. 
The vendor was the executrix of an estate. This deed 
is, of course, dated after the year of independence but 
it necessarily refers to lands titled during the colonial 
period since the sale was made on behalf of an estate 



132 

which could not have been settled in the short period 
intervening since independence. (H. Exh. no. 20.) 

1837. — Likewise, the title deed to the lands of 
Hacienda Cuyamel, issued in Honduras in 1837, which 
extend to the Manga Vieja (old mouth) of the Motagua 
River. (H. Land Titles, p. xvi.) 

(3) The ecclesiastical evidence is to the same effect. 

It has been noted that the evidence of an ecclesiasti- 
cal character extant is not sufficient to determine in 
detail the limits of the uti possidetis of 1821. How- 
ever the ecclesiastical evidence of a general character, 
principally the Report of Bishop Cadinanos in 1791 
{supra, p. 82), confirms the fact of Honduranean juris- 
diction to the Motagua River. In addition the follow- 
ing documents showing specific acts of spiritual juris- 
diction may be noted : 

1578. — In a report to the King dated Comayagua, 
April 15 of this year Pedro Ortiz, Provincial Master, 
stated : "This Province of Honduras, I am informed, 
has had no religious Instruction for the Indians and 
for the present has none except in the Province of 
Tencoa where there is a house and monastery of our 
Lady of Mercy . . ." (H. Exh. XIII, no. 35.) 

1842. — Memorial of Antonio de Larrazabal, Arch- 
bishop of Guatemala. In this report the Archbishop 
gives the boundaries of the Bishopric of Honduras as 
follows : 

"The diocese includes all of what was form- 
erly the Intendencia and is now the State of 
Honduras ... Its boundaries — This State 
extending from east to west the length of the 



133 

coast of the sea of the North is bounded on the 
west by Chiquimula of the State of Guatemala 
and on the south by San Salvador and on the 
southeast and east by the State of Nicaragua 
and on the north by the Gulf of Honduras 
. . ." (H. Exh. XIII, no. 48.) 

Although this report is of a date after indepen- 
dence, it is proper evidence in the present proceeding 
because it refers to the territorial extent of the 
Bishopric of Honduras as it stood at the close of the 
colonial epoch. Coming as it does from the highest 
spiritual authority in Guatemala, who personally par- 
ticipated in the events leading up to independence, the 
Report has the weight of an admission against interest. 

(4) The cartographical and geographical data support 
the Honduranean claim to possession of this sector. 

This variety of evidence in its general aspects has 
been discussed under point III. In its more special 
reference to the sector of the frontier here under con- 
sideration, the testimony of the maps and geographers 
is covered in the treatment, in point VII below, of the 
coast region west of the Motagua River. Reference 
thereto will avoid repetition at this point. 

(5) The diplomatic exchanges between Guatemala and 
Honduras resulting in the treaty of 1895, indicate Honduran- 
ean possession to the Motagua River. 

Under the date of October 10, 1894 the Guatemalan 
Minister of Foreign Affairs, Sr. Jorge Munoz, ad- 
dressed a note to the Honduranean Minister of like 
category in which he requested that the Honduranean 



134 

authorities who were exercising jurisdiction in the vil- 
lage of Los Ranchos and the towns of Santa Cruz, Los 
Chajales and El Paraiso be immediately removed, on 
the ground that they lay within the Guatemalan Mu- 
nicipality of La Palmilla, in the Department of Izabal. 
Sr. Mufioz recited that in March of the preceding year 
a Guatemalan engineer who had been commissioned to 
survey public lands which had been denounced by 
several persons lying between the rivers Morja and 
Jubuco (that is, on the western slopes of the Sierra del 
Merendon), was prevented from making such survey 
by a Honduranean Commandant and soldiers. The 
Guatemalan Minister further complained that a Belgian 
company was in possession of the property called "La 
Esperanza" purchased of the Honduran Government 
and surveyed by an engineer of that Government. This 
was a tobacco plantation whose Eastern boundary was 
the Morja River. (Mensaje del President e de Hondu- 
ras (Tegucigalpa, 1896), p. 68.) 

In his reply, dated November 30, 1894 {idem, p. 69), 
the Honduranean Minister, Sr. Cesar Bonilla stated, 
that quite to the contrary of the Guatemalan allegations, 
not the Honduranean but Guatemalan local authori- 
ties had been guilty of an invasion of territory and had 
arrested the Honduras Commandant and his soldiers; 
that the Honduran town of El Paraiso had been cre- 
ated a municipality in 1891, in compliance with Hon- 
duran laws, annexed to which were the villages of 
Tapesco, Rancho, El Cisne, Santa Cruz, El Chorro and 
La Navedad (Los Ranchos), all to the north and 



135 

northwest of El Paraiso and eight leagues distant from 
the banks of the Motagua river; and, as regards the 
plantation "La Esperanza", that was a tract of land 
with an area of 3,000 blocks {mansanas) which had 
been denounced in the Administration of Copan by the 
representatives of a Dutch tobacco company and duly 
surveyed, auctioned and titled by the Honduranean Gov- 
ernment in October, 1893. Sr. Bonilla then asserted 
as the boundary line between the two countries substan- 
tially that maintained by his Government in the 
present Mediation, including the Motagua river; and 
in support of his assertion referred to various maps, 
to the texts of the geographers including Juarros, 
to the titles of lands surveyed by the Sub-delegates of 
Gracias during more than two centuries and to the 
Instructions (in 1844) of the Guatemalan Government. 
He contended that there was not a single town or vil- 
lage having Honduran authorities which did not belong 
to Honduras without dispute; but that if any doubt 
should arise as to the line, his Government was entirely 
disposed to settle it in a friendly fashion either by 
means of a mixed commission or by arbitration. 

Out of this offer resulted the convention of 1895. 
{Idem, p. 12.) 

Here we have evidence of Honduranean possession 
covering the period between the first boundary treaty 
of 1845, and the second treaty of 1895. 



136 

(6) The Instructions to the Guatemalan boundary com- 
missioner under the treaty of 1845 also indicate Honduranean 
possession to the Motagua River. 

In these Instructions the Guatemalan Government 
gives its Commissioner the following directions (H. 
Exh. XVII A, sec. 7) : 

"From the point at Chucuyales [near the 
confluence of the Managua and Motagua 
Rivers on the Brue and Arrowsmith maps cited 
by these Instructions^ , following the mountain to 
the Motagua, it forms a boundary . . . and also 
the river to its mouth in the Bay of Omoa or 
Honduras. This boundary must be fixed as cer- 
tain because it is so stated by Father Juarros at 
vol. I, p. 35, and as such has been recognized in 
the past by usage and custom. Law 1, title 1, 
Book V of the Indies, provides that with respect 
to boundaries, that established by use and custom 
shall be abided by and accepted. It also orders 
that the one decided upon previously by royal 
ordinances and superior orders shall be accepted 
and abided by without doubt or objection. A 
river is one of the most important means, there- 
fore, even though it should not be proven that it 
really is. It should be presumed. It is so stated 
in the Curia Filipica Mar Art. River, No. 18. 
In case of doubt the ends of the jurisdictions are 
understood to be divided by the river, as stated 
by Gregorio Lopez, because it is believed that 
the river was placed by Nature as an eternal 
boundary of the sections." 

Here we have an admission of Honduranean pos- 
session which runs back to the year of independence 



137 

and confirms the indisputable right of Honduras on the 
principle of the uti possidetis of 1821. 

(7) Honduras is entitled to possession up to the San 
Francisco River, which was the channel of the Motagua 
River in 1821. 

The Guatemalan boundary Instructions of 1844 ad- 
mit that in 1821 the Motagua River emptied into the 
Gulf of Honduras about fourteen kilometers west of 
its present mouth; but argue, on the authority of a 
Spanish text, the Curia Pilipica, that with the avulsion 
of the stream to its present channel, Honduras lost and 
Guatemala acquired title, to the territory lying between 
(H. Exh. XVn A, sec. 8) : 

"The same Curia [Filipica] states at No. 20 
that if the river changes its location from that 
through which it formerly passed and flowed 
and takes a new course elsewhere, this becomes 
public, and the owners of the soil lose the same, 
and the former course ceases to be public, and 
is acquired by the owners of the land which it 
adjoins, as is stated in law, because a river has 
the powers of a judge, who gives and takes away 
dominion. Such case has occurred with the 
Motagua, which has changed its course some 
cords or leagues before reaching its mouth, leav- 
ing an islet at the edge of the sea, as is shown 
by the map published by the Belgian Company, 
which depicts two streams with the name of 
Motagiiilla and Motagua. From oral informa- 
tion we know that the first was the former river 
bed which became obstructed with the sand and 



138 

mud of the freshets ; and that the second, which 
is further east, towards the State of Honduras, 
is the new one which has opened; if it were 
thus the soil which has remained in the islet has 
accrued to Guatemala and has been lost by Hon- 
duras, according to the prinicples and precedents 
of public law found in the works and established 
by Heineccius, Grotius and other publicists, 
which are not cited because there is no dispute. 
Measuring this islet which has become dry with 
the scale stated in the same map, it appears to be 
from north to south 2^ leagues of 5,000 meters 
each, which make exactly three leagues of 
ours . . ." 

It appears from the careful examination of the maps 
and geographies, made by Dr. Williams, that the Mota- 
gua River took its present channel — which was the bed 
of the Rio Tinto — after the year of independence; and 
that at the end of the colonial period, the river found 
its way to the Gulf through the bed of the River San 
Francisco, which is twenty-four kilometers west of the 
present mouth of the Motagua. {Report, pp. 81-82; 
and references therein.) 

If the Honorable Mediator is satisfied that the 
Motagua River in the year of independence discharged 
through the present San Francisco River, the thread of 
this river is the boundary on the principle of the uti 
possidetis juris of 1821. Otherwise, the boundary is 
the thread of what was called the Rio Tinto, before the 
Motagua began to discharge through it. In either re- 
sult, Honduras is entitled to the intervening territory 



139 

which was affected by the avulsion of the Motagua 
River. The principles of international law on this point 
are settled beyond discussion. The statement of the 
principles given in the Instructions of 1844 is errone- 
ous, except in so far as it implies that where a river, 
which forms an international boundary, gradually 
shifts through erosion, the boundary shifts with it. 
We refer the Honorable Mediator to the latest state- 
ment of the rule by the Supreme Court of the United 
States in Arkansas v. Tennessee, 246 U. S. 158, 173 : 

"It is settled beyond the possibility of dis- 
pute that where running streams are the bound- 
aries between States, the same rule applies as 
between private proprietors, namely, that when 
the bed and channel are changed by the natural 
and gradual processes known as erosion and 
accretion, the boundary follows the varying 
course of the stream; while if the stream from 
any cause, natural or artificial, suddenly leaves 
its old bed and forms a new one, by process 
known as an avulsion, the resulting change of 
channel works no change of boundary, which 
remains in the middle of the old channel, al- 
though no water may be flowing in it, and irre- 
spective of subsequent changes in the new chan- 
nel. New Orleans v. United States, 10 Pet. 662, 
717; Jefferis w.-Bast Omaha Land Co., 134 U. 
S. 178, 189; Nebraska v. Iowa, 143 U. S. 359, 
361, 367, 370; Missouri v. Nebraska, 196 U. S. 
23, 34-36." 

See also the learned opinion of the Attorney General 
of the United States, in ,8 Opin. A. G., 175, wherein 



140 

with reference to the arcifinious Rio Grande as the 
boundary between the United States and Mexico, the 
Spanish and Mexican authorities are collected and the 
rules of international law as above stated are shown 
to be (p. 179) "an established element of the laws of 
Spain and of Mexico". 



VII. 

UPON THE PRINCIPLE OF THE UTI POSSIDETIS JURIS 
OF 1821, AS DEFINED BY GUATEMALA IN THIS MEDIATION 
AND ACCEPTED BY HONDURAS, THE LATTER HAS LEGAL 
TITLE TO THE FRONTIER UP TO BRITISH HONDURAS. 

(1) The coast region west of the Motagua River to 
Yucatan was in 1821 unorganized territory within the juris- 
diction of the Intendente of Honduras. 

It has been shown that the territorial organization 
of the intendencia of Honduras was definitely fixed by 
the royal cedula of July 24, 1791, which declared it to 
include the alcaldia mayor of Tegucigalpa "with all 
the territory of its Bishopric, except the port and mili- 
tary post of Omoa"; and that Omoa was restored to 
the direct control of the gobernador-intendente of 
Honduras by the cedula of October 16, 1818. (Refer- 
ences, supra, pp. 57-58.) The alcaldia mayor of Tegu- 
cigalpa had been carved out of the Province of 
Honduras in 1578, following upon the discovery of 
mines therein; but it had continued under the hier- 
archical authority of the Governors of Honduras. 
(H. Exh. XXV, no. 1.) Accordingly, when inde- 



141 

pendence was achieved, the new State of Honduras 
claimed title to, and incorporated within its territory 
the alcaldia mayor, of Tegucigalpa. 

Similarly the intendente of Honduras had military 
and contraband jurisdiction over the unorganized lit- 
toral territory lying west of the Motagua river as far 
as Yucatan, pursuant to the much discussed cedula of 
August 23, 1745. (H. Exh. VHI.) Accordingly, 
when independence was achieved, that territory con- 
tinued under the jurisdiction of Honduras. 

The construction thus placed by Honduras upon the 
decrees of the Spanish Kings and especially the 1745 
cedula, is supported by the award of Alfonso XHI in 
the Honduras-Nicaragua arbitration, where the iden- 
tical problem here raised as to the western frontier of 
Honduras, was settled as to her eastern boundary. By 
reason of the exact analogy of that arbitration, and 
therefore of the direct force of the award therein as a 
precedent in the present Mediation, special attention 
should be drawn to the following paragraphs of the 
award (Ramirez F. Fontecha, op. cit., p. 115): 

"Considering that by virtue of this Royal 
Cedula the province of Honduras was formed 
in 1791 with all the territories of the primitive 
province of Comayagua, those of its annexed 
province Tegucigalpa and the other territories 
of the Bishopric of Comayagua, thus compris- 
ing a region which bounded on the South with 
Nicaragua, on the southwest and west with the 
Pacific Ocean, San Salvador and Guatemala, 



142 

and on the north, northeast and east with the 
Atlantic Ocean . . . 

"Considering that as a precedent of what 
was provided in said Royal Cedula of 1791 the 
demarcation by two other Royal Cedillas of 
Aug. 23, 1745, should be taken into account, in 
the one naming don Juan de Vera Governor 
and General Commandant of the province of 
Honduras, for the command of this province 
and of the others comprised in all the Bishopric 
of Comayagua and district of the Alcaldia 
Mayor of Tegucigalpa and of all the territories 
and coasts zvhich are comprised from zuhere 
the jurisdiction of the province of Yucatan 
terminates to Cape Gracias a Dios . . . " 

As with the new State of Honduras in the case of 
the alcaldia mayor of Tegucigalpa and the unorgan- 
ized littoral west of the Motagua River, Guatemala 
upon her evolution into an independent State acquired 
title to Chiquimula and Verapaz. As has been noted, 
Verapaz and Chiquimula at the close of the colonial 
period were still alcaldias mayores, under the hierarchi- 
cal authority of the Captain General and Audiencia of 
Guatemala. They had not achieved autonomy under 
the system of the intendencias as transplanted from 
Mexico to Central America and quite naturally the 
new State of Guatemala, upon its organization, claimed 
sovereignty over them. 

The new State of Honduras of course could not 
oppose this claim; and no question between her and 
Guatemala would have arisen, if the latter after the 



143 

year of independence had restricted her pretensions to 
jurisdiction in Chiquimula and Verapaz to the north- 
ern boundaries which were assigned to these alcaldias 
mayores during the colonial epoch. But Guatemala 
pushed the northern frontiers of Chiquimula and Vera- 
paz forward until they reached the Gulf of Honduras. 
This Guatemala did in the face of the cedula of 
August 23, 1745, under which Honduras on the prin- 
ciple of the uti possidetis of 1821 was thereafter en- 
titled to sovereignty over the entire littoral as far as 
the boundary of the Province of Yucatan. 

(2) The Honduranean title to the littoral west of the 
Motagua River is supported by the legislative history of the 
Province of Honduras. 

Neither in the course of the present Mediation nor 
in the negotiations under the previous boundary 
treaties with Honduras has Guatemala produced a 
single cedula or other royal order which justified her 
claim that the alcaldias mayores of Chiquimula and 
Verapaz in colonial times reached the sea coast. A 
brief review of colonial history will show that in point 
of fact no such legislation existed. 

Following upon the original discovery and con- 
quest, by various adelantados, King Carlos V divided 
the region here under discussion into the 
Provinces of Honduras (Hibueras), Nicaragua, 
Yucatan and Guatemala, in the order named. 

Honduras was erected into a province by the 
cedula of November 25, 1525, which appointed 



144 

Diego Lopez de Salcedo its first governor. {Coleccion 
de document OS incditos de Indias, vol. XIV, pp. 47-52.) 
By this cedilla the King ignored the claim of Pedrarias 
Davila that he was entitled to the province. (Hackett, 
"Delimitation of Political Jurisdiction in Spanish 
North America to 1535", Hispanic American Histori- 
cal Reviezv, vol. I, pp. 57, 68.) 

Pedrarias was rewarded by the cedula of March 
16, 1526 appointing him the first Governor of Nica- 
ragua, which thus came into existence as a province. 
(Peralta, Costa Rica, Nicaragua y Panama, p. 719; 
Hackett, op. cit., p. 68.) 

Yucatan came into existence as a province by 
virtue of a capitulation of December 8, 1526, where- 
by Francisco de Montejo, a former lieutenant of 
Hernan Cortes, was given the right to conquer and 
settle Yucatan and Cozumel. (Hackett, op. cit., p. 
58, citing Ancona, Historia de Yucatan, pp. 390- 
396, for the text of the capitulation.) Thus the 
King carved the Province of Yucatan out of territory 
claimed by Cortes based on the fact that the latter had 
touched this coast on his initial voyage from Cuba to 
Mexico. 

Following upon the discovery and conquest of 
Guatemala that region was erected into a province 
and Pedro de Alvarado named as Governor and Cap- 
tain General by cedula of December 18, 1527, the 
Province being taken away from Mexico notwith- 
standing the claim of Cortes that he was entitled 



145 

thereto because Alvarado was his Lieutenant. (Juar- 
ros, op. cit., vol. II, p. 254; Hackett, op. cit., p. 56.) 

It will thus be seen that the Kings of Spain re- 
served the right freely to apportion the territories of 
the Indies among their various adelantados, the Indies 
being their personal prerogative under the Bull of Pope 
Alexander VI. The earliest expressions of this prin- 
ciple are contained in the cedulas of King Carlos V 
dated September 14, 1519, July 9, 1520 and October 
22, 1523 (Coleccion de documentos ineditos de ultra- 
mar, Segunda Serie, vol. IX, pp. 118, 129, 185); and 
in the Nuevas Ordenansas (Nos. 21 and 31) for the 
government of the Indies issued by King Felipe II on 
November 20, 1542. (Garcia Icazbalceta, Coleccion 
de documentos para la Historia de Mexico, vol. II, pp. 
216-217.) These provisions were afterwards reaf- 
firmed in the Recopilacion de Indias. (B. Ill, t. 1, 
law 1; B. IV, t. 1, 1. 14.) Number 31 of the Nuevas 
Ordenanzas of 1542 ordered that no discoverer or 
populator could enter to discover or populate within 
the districts which should have been entrusted to or dis- 
covered by others ; and in case of doubt or difficulty as 
to the boundaries, that the question be referred to the 
audiencia having jurisdiction. (Recop. de Indias, B. 
IV, t. 1, line 11.) 

Applying these principles to the Province of Hon- 
duras, which was the first, in point of time, to be 
created in Central America, it will be seen that its 
first Governor, Lopez de Salcedo acquired jurisdiction 
over the places which had been settled or discovered 



146 

in the province or which thereafter should be discov- 
ered therein. The exact language of the cedula which 
appointed him reads : ''To you, Diego Lopez de Salcedo 
. . . for you to have and hold our civil and criminal 
justice in the cities, villages and places which at present 
are populated in said lands, or which might be inhab- 
ited thereafter". (G. Note of May 24, 1918, pp. 14- 
15.) Honduras claims that San Gil de Buena Vista 
was one of these towns because it had been founded 
by Gil Gonzales in 1524. (H. Memo, June 22, 1918, 
p. 6.) Alvarado coming in 1526 found a settlement 
there; and in 1536 he apportioned lands in the town. 
(Coleccion de docs, ineditos de Indias, vol. XV, p. 22.) 
The town was in existence in 1563 for King Felipe II by 
the cedula of September 8, 1563, expressly mentioned 
that it lay in Honduras. The Guatemalan representative 
in the present proceeding has not explained away this 
mention in the cedula of 1563. San Gil de Buena Vista 
was located on Amatique Bay inside of Cape Three 
Points well to the east of the Motagua River. (See map 
facing Ixxii, Bancroft, History of Central America, 
vol. I ; H. Map Exh.) Honduras further claims that the 
jurisdiction of her colonial governors extended west- 
ward beyond San Gil de Buena Vista to Yucatan ; and 
that such extent of jurisdiction had been defined as early 
as 1536. In this year Alvarado so stated in his letter of 
November 20, t#i#, to the Council of Indies (H. Exh. 
Ill, no. 1); and he and Montejo so recognized in 
their agreement of this ypfM-, which received the royal 
approval (Herrera, op. cit., vol. I, p. 194). That the 



147 

Governors of Honduras continued to exercise juris- 
diction up to Yucatan, is hereinafter indicated. 

Lopez de Salcedo ruled as Governor of Honduras 
until his death in 1530. The audiencia of Santo Do- 
mingo, which then had jurisdiction over the province, 
sent Diego de Albitez to act as Governor pending a 
proprietary appointment by the King. Albitez died 
shortly after his arrival in Trujillo naming as interim 
Governor Andres de Cereceda, who was Treasurer. 
Cereceda except for a short interval governed until 
1536. As a result of his tyrannous conduct the affairs 
of the colony went from bad to worse until they 
reached such a pass that the settlers in this year ap- 
pealed to Alvarado, the Governor of the neighboring 
Province of Guatemala to take over the government 
of Honduras. This Alvarado agreed to do with the 
result that he settled San Pedro Sula and founded 
the Port of Cavallos. He also sent his Lieutenant, 
Juan de Chaves, to seek "a good site almost on the 
boundary line between Guatemala and Honduras 
within the limits of Honduras in order to establish 
communications between the two governancies". Thus 
was Gracias a Dios founded. (Pedraza, op. cit., pp. 
418-426.) This quotation from Pedraza shows that 
Alvarado did not undertake to merge the two prov- 
inces of Guatemala and Honduras but, in addition to 
the government of Guatemala which he already en- 
joyed by virtue of the Real Cedula of 1527, he assumed 
the government of Honduras pending approval of his 
acts by the King. In July or August, 1536, he set out 



148 

for Spain whence he returned early in 1539. (Milla, 
op. cit., vol. I, pp. 277-278, 296-297.) 

Meanwhile Montejo, Governor of Yucatan, who 
since 1536 had in his possession a royal provision in- 
structing him to proceed to Honduras and govern it 
until the King should appoint a proprietary governor, 
took advantage of Alvarado's absence to assume the 
government of Honduras by virtue of this royal pro- 
vision. He had not done so previously because of the 
ill reports which came from Honduras as to its aban- 
doned and unprofitable condition; but he was now 
moved to do so upon hearing of the order established 
there by Alvarado and particularly of the discovery 
of rich mines near San Pedro Sula. When news of 
Montejo's seizure reached Spain Alvarado complained 
to the King, with the result that he brought along with 
him upon his return to Honduras a cedula addressed 
to Bishop Pedraza which directed the Bishop to do 
justice between the two adelantados. Pedraza was 
successful in effecting a settlement, as to which it is 
sufficient here to recall that Montejo relinquished his 
claim to the government of Honduras in favor of Alva- 
rado. (For further details see Pedraza, op. cit., pp. 
426-433, upon which, as a strictly contemporary nar- 
rative the above account is based. ) We have already 
noted that the agreement between the two adelantados 
in 1539 received the royal approval. 

Alvarado continued as Governor of both provinces. 
Upon his death in 1 542, the audiencia of Mexico named 
Alonso de Maldonado as interim governor; and it is 



149 

probable that his appointment was confirmed by the 
King because he continued as Governor and also Presi- 
dent of the Audiencia de los Confines, which had been 
created by one of the above mentioned Nuevas Orde- 
nansas of 1542, until the year 1548, when he became 
Governor of Yucatan. (Juarros, op. cit., vol. I, p. 
257.) In view of the royal approval which had been 
given to the agreement between Alvarado and Monte jo 
whereby the former had become governor of the two 
Provinces of Guatemala and Honduras, Maldonado 
notified the local authorities of Honduras of his inten- 
tion to govern that province; but as they wished to 
resume their previous independence of Guatemala, they 
refused to recognize Maldonado and named as interim 
Governor Diego Garcia de Cells. Thus Honduras 
came again to be governed independently of the Prov- 
ince of Guatemala. (Milla, op. cit., vol. I, p. ?>2i7.) 

That after 1542 Honduras had separate governors, 
may be deduced from the much discussed cedulas of 
September 8, 1563, and May 17, 1564, which appointed 
respectively as Governors of Guatemala, Luis de Guz- 
man and Juan Busto de Villega {supra, p. 24). The 
territorial limits assigned to Guatemala within which 
each of these governors should have jurisdiction were 
carefully defined with reference to the boundary where 
the territory of Honduras began, thus showing that 
neither was to have jurisdiction over the government 
of Honduras. This later cedula of 1564 of course is 
that which Honduras in the present Mediation con- 
tends to have restored the boundaries for the province 



150 

of Honduras which had been established since the time 
of the first Governor, Lopez de Salcedo. The records 
extant show that from at least 1589 forward during 
the balance of the colonial epoch, Honduras had gov- 
ernors distinct from those of the Province of Guate- 
mala. (Garcia Pelaez, Memorias para la Historia de 
Guatemala, vol. H, pp. 177-180.) 

We have already had occasion to note that in 1605, 
as a result of the piratical incursions from which the 
Port of Cavallos suffered, the President of the audien- 
cia, Criado de Castilla, caused the Port of Sto. Tomas 
de Castilla to be founded on Amatique Bay inside of 
Cape Three Points; and that, the new Port having 
proved impracticable by reason of the desert character 
of the surrounding country, its inhabitants were re- 
moved to a new port of Puerto del Golfo or Castillo de 
San Felipe, which was opened in Golfo Dulce in 1646. 
(Supra, p. 33, note.) 

At some time prior to 1646 the district of Sto. 
Tomas de Castilla was erected into an alcaldia mayor, 
because Diez de la Calle in his Memorial (p. 129) men- 
tions the existence thereof in the jurisdiction of the 
Province of Honduras. It was called the Alcaldia 
mayor of Amatique after Amatique which had been 
settled in the early years of the Province of Honduras 
and afterwards abandoned. (Juarros, op. cit., vol. 
n, p. 161.) Following upon the abandonment of Sto. 
Tomas de Castilla, the alcaldia mayor of Amatique 
ceased to have sufficient importance to support the 
ofiScials making up an alcaldia mayor; and accordingly 



151 

it was suppressed in the early years of the 18th cen- 
tury. (Juarros, op. cit., vol. II, p. 38.) During its 
existence the alcaldia mayor of Amatique was de- 
scribed by Juarros as having the following territorial 
extent (op. cit., vol. II, p. 160) : "The district of the 
alcaldia mayor of Amatique extended from east to 
west 35 leagues and 30 leagues from north to south. 
It is bounded on the south by the Province of Chiqui- 
mula, on the north by the Bay of Honduras, on the 
west by Verapaz and lands of wild Indians and on the 
east by the Province of Comayagua [Honduras]". 
Juarros then goes on to say that in this alcaldia mayor, 
besides the abandoned towns of Amatique, Jocolo and 
Sto. Tomas de Castilla were included the Castillo de 
San Felipe and Golfo Dulce on which the Castillo was 
situated. 

Thus at sometime before 1745 the district formerly 
organized as the alcaldia mayor of Amatique once 
more became unorganized territory under the direct 
jurisdiction of the Governor of Honduras, just as the 
coast region further west which Juarros describes as 
''lands of wild Indians". This was the condition of 
the coast region west of the Motagua River when King 
Felipe V on August 23, 1745, issued the cedula where- 
by he conferred upon Colonel Juan de Vera his com- 
mission as Governor of the Province of Honduras and 
also invested him with military and contraband powers 
over that region as far as Yucatan. (H. Exh. VII.) 

The Guatemalan representative has contended, first, 
that this cedula was revoked by the cedula of January 2, 



152 

1747, whereby Field Marshal Francisco Cagigal de la 
Vega was appointed Governor and Captain General of 
Guatemala and vested with hierarchical military author- 
ity over Col. Juan de Vera, as governor of Honduras, 
which had been taken from his predecessor because 
the latter was merely a lawyer ; and, second, that even if 
this were not so, the grant of direct military and con- 
traband jurisdiction to Vera and his successors as 
Governors of Honduras did not confer political juris- 
diction over the coast region west of the Motagua 
River to Yucatan. (G. Note, June 25, 1918, pp. 24- 
26; and Note, July 25, pp. 70-71.) The second conten- 
tion of the Guatemalan representative would have 
some force, if the region in question had been con- 
tinued to be organized as an alcaldia mayor or even if 
it had been erected into a corregimiento and he could 
produce some cedula which incorporated the district 
in the province of intendencia of Guatemala. But, as 
we have already noted, the only organized government 
in the region, namely the alcaldia mayor of Amatique, 
had been suppressed in the early years of the century ; 
and so far as the extant evidence shows, if the grant 
of direct military and contraband authority made in 
favor of Governor Juan de Vera was enjoyed by his 
successors up to the close of the colonial period, such 
grant was sufficient to carry with it, on the principle 
of the uti possidetis of 1821, a right to the territory 
in question on the part of the new State of Honduras. 
This military and contraband jurisdiction was precisely 
that species of jurisdiction which the Captain General 



153 

of Guatemala had been granted by the Kings over the 
Ports of Trujillo and Omoa about the same time that 
Governor de Vera was vested with a Hke grant of 
authority over the coast region between the Motagua 
River and Yucatan. If Trujillo and Omoa had not 
been restored to the jurisdiction of the intendente of 
Honduras before the close of the colonial period, the 
Captain General of Guatemala might have laid claim 
to territorial rights in those places, which after 
independence would have devolved upon the new State 
of Guatemala by inheritance. Of course, as a matter 
of fact, the cedulas of 1816 and 1818, which restored 
Omoa and Trujillo to the jurisdiction of the inten- 
denfes of Honduras, made impossible such a claim. As 
has already been noted, the interpretation thus put by 
Honduras on the cedula of August 23, 1745, is con- 
firmed by King Alfonso XHI in his Award in the Hon- 
duras-Nicaragua arbitration. 

The other Guatemalan contention viz., that the mili- 
tary and contraband jurisdiction conferred upon Gov- 
ernor Juan de Vera was superseded by the cedula of 
1747 appointing Field Marshal Cagigal de la Vega as 
Captain General of Guatemala, has no better basis 
than the forced construction placed by Guatemala on 
this cedula as compared with that of 1745. As against 
such forced construction is the entirely natural con- 
struction suggested by the representative of Honduras, 
namely, that because Field Marshal Cagigal de la Vega 
was a military man, he should be re-vested with the 



154 

hierarchical military authority over the Governor of 
Honduras inherent in the Captain General of the whole 
kingdom, which was only accidentally taken away from 
his predecessor because he was a lawyer. 

Against the position thus taken by Honduras in 
the present Mediation as to her claim to the unorgan- 
ized territory in question, the only adverse evidence 
of which we are aware is the statement made by Juar- 
ros that Golfo Dulce lay in the Province of Chiquimula 
and that Chiquimula on the north was bounded by the 
North Sea. {Op. cit., vol. I, p. 34.) Any statement 
of Juarros is, of course, entitled to respectful consid- 
eration. But on this particular point it is to be noted 
that he quotes no cedilla wherein the limits of Chiqui- 
mula are defined; and he does not mention the cedula 
of August 23, 1745. 

The Report of the Solicitor General of the Munici- 
pality of Comayagua dated October 16, 1820, which 
was produced by the Representative of Guatemala in 
an effort to show that the Honduranean authorities did 
not consider that the boundaries of their province had 
been fixed by the cedilla of 1745 (G. Note, Sept. 21, 
1918, "Index", p. VH), is not in point. The Report 
was not concerned with the boundaries of Honduras 
but was intended to show that Honduras as a province 
was entitled to a provincial legislature independent* of 
Guatemala. To this end Law 15 of Title 1, Book V of 
the Recopilacion de Indias, was cited. This law, which 
codified a cedula of October 2, 1528, provided: "It is 



155 

our will that the islands of the Guana jes, which are dis- 
tant 10 and 12 leagues from the coast of Honduras, be 
included within the limits and jurisdiction {terininos) 
of the gohernacion of Honduras". It will thus be noted 
that while this law does support the Solicitor's conten- 
tion that Honduras was a province, it contains no impli- 
cation whatsoever as to the extent of its territory other 
than the undoubted fact that these islands from the 
earliest times were within Honduranean jurisdiction. 

(3) The Honduranean title to this region is also sup- 
ported by the evidence of the exercise of jurisdiction therein, 
both political and ecclesiastical. 

The littoral between the Motagua River and Yuca- 
tan continued unsettled during the colonial period, with 
the exception of the ports of Sto. Tomas de Castilla on 
Amatique Bay, and later of Castillo de San Felipe on 
Golfo Dulce, and with the further exception of the log- 
cutting settlements established by the British towards 
the close of the period. For this reason, the extant 
evidence of Honduranean jurisdiction is not as volu- 
minous as that which supports the right of Honduras to 
the teritory east of the Motagua River. It is herein- 
after compiled: 

1529. — By letter of April 20 of this year, the 
Adelantado, Montejo, conceiving that he had duly per- 
formed the capitulation into which he had entered in 
1526 for the conquest of Yucatan, requested the King 
to confirm the grant thereof to him. He named as 
the proposed boundaries: "from sea to sea, which is 



156 

from the river Sant Anton, which is before Grijalva 
to the River Pechin [territory of Honduras] which 
is on the coast of the North" (H. Exh. XIII, no. 14.) 
Here we have recognition by a neighboring adelantado 
that the province of Honduras extended up to Yuca- 
tan. 

1536. — Letter from the adelantado, Alvarado, to 
the Council of Indies (H. Exh. Ill, no. 1), which be- 
gins: 

"The Empress, our Lady, ordered me by let- 
ter that I should not intermeddle in anything 
pertaining to the land of Honduras because she 
had granted that Governancy to Diego Arbitez, 
and on the other hand the Adelantado Monte jo 
comes to settle the land of Cugumel; and in 
these Governancies [meaning Yucatan and 
Honduras] there is embraced all of the coast 
of the Sea of the North zvhich borders on this 
Governancy [Yucatan] in such manner that I 
cannot comply with your Majesty's commands 
[i. e. to find a port for the Province of Guate- 
mala] without entering upon the territory of 
these two Governancies [meaning Honduras 
and Yucatan] . . ." 

Here is recognition by Alvarado, when he was only 
Governor of Guatemala, that his Province lay inland 
and that Honduras adjoined Yucatan. 

1537. — Letter to the King of Jeronimo de San 
Martin, Treasurer of Honduras, dated April 28, 1537 
(G. Note, May 24, 1918, p. 24) : 

"I do not know how this [the dispute be- 
tween Monte jo and Alvarado over the Province 



157 

of Honduras] can be settled and that the rem- 
edy for it is to join it [Honduras] with the gov- 
ernment of Yucatan, since there is no communi- 
cation between the great rivers and their 
branches which go out to sea and the roads are 
impassible, for which reason no aid can be ex- 
pected from it since it lacks it for itself; and 
further inland and between them is the govern- 
ment of Guatemala . . ." 

Here we have a witness, provided by Guatemala, 
who confirms the fact that the Province of Guatemala 
lay inland adjoining Honduras and Yucatan. 

1539. — Letter to the King of Alvarado, dated 
Gracias a Dios, August 4 of this year, reporting his 
agreement with Monte jo and asking the grant of the 
government of Honduras in view thereof. (H. Exh. 
in, no. 2.) Alvarado urged the grant "because it is a 
matter of importance to the Governancy of Guatemala 
both because it is in the middle thereof as by the Port 
of Cavallos which is the nearest thereto that there is." 

1582. — The Report of Governor Contreras Guevara 
of Honduras. He mentions Amatique as within his 
jurisdiction. {Supra, p. 32.) 

1583-1608. — In this connection may be mentioned 
the documents relating to the controversy over the clos- 
ing of Puerto Cavallos^nd the opening of Sto. Tomas 
de Castilla, which admittedly lay in Honduras. {Supra, 
p. 2>2), note.) 

1595. — In this year Pablo Higueras, Lieutenant of 
the Government of Yucatan, designated Captain Am- 
brosio de Argiielles to explore the coast of the Bay of 



158 

Ascension and to conquer the Indians along the south- 
eastern section of the peninsula to the boundary with 
Honduras. (H. Note, Aug. 27, 1918, pp. 26-27, quot- 
ing Molina Solis, Historia de Yucatan, vol. I, p. 240.) 
Here we have Yucatecan evidence that Honduras ex- 
tended to the peninsula. 

1620. — Docket in a suit on appeal before the 
Audiencia of Guatemala, to collect certain sums paid 
in 1605 by the officials of the Royal Treasury at Tru- 
jillo, in excess of what had been ordered by the Presi- 
dent of the Audiencia, Criado de Castilla, for the pas- 
sage of certain ships of the Spanish fleet from Trujillo 
to the new port of Sto. Tomas de Castilla. In this order, 
which is inserted, there is express admission that the 
new port was under the jurisdiction of the Governor 
of Honduras. (H. Exh. XXV, no. 2.) 

1646. — It has already been noted that Diez de la 
Calle in his Memorial, published in this year, placed the 
Port of Sto. Tomas de Castilla within the jurisdiction 
of the Governor of Honduras. (Supra, p. 33.) 

1693. — Docket which contains the petition of Man- 
uel de la Fuente, presbyter and curate of Sto. Tomas 
de Castilla and the district of Amatique and chaplain 
of the infantry of Castillo de San Felipe on Golfo Dulce, 
for compensation of his services in these capacities ; and 
the favorable action thereon taken by the Audiencia of 
Guatemala. It shows that the coast, at least as far west 
as Golfo Dulce, was under political jurisdiction of the 
Governor of Honduras and of the Bishopric of Hon- 
duras in matters spiritual ; and that the highest tribunal 
in the Captaincy General so held. (H. Exh. XV.) 



159 

1714.— Real Cedula of April 30, 1714, which recites 
that the Mosquito Indians had in 1704 "invaded the 
town of Amatique near the fortress of Golfo Duke on 
the Honduras side". (H. Exh. XX.) 

1723. — Report of Joseph de Rodesno, Oidor of the 
Audiencia as to smuggling on the coast of Honduras. 
{Supra, p. 67.) As there noted, Rodesno placed in 
Honduras Golfo Dulce and the Castillo located thereon. 

1748. — Letter from Antonio del Castillo, written 
from Castillo de Golfo Dulce, under date of August 
28 of this year, and addressed to Pedro Truco, Lieu- 
tenant of the Governor of Honduras, wherein it ap- 
pears that the latter exercised jurisdiction at this point. 
This letter also sustains the Honduranean interpre- 
tation of the Royal Instructions of January 3, 1747, 
to Captain General Cagigal de la Vega, namely that 
they did not take away the direct jurisdiction of Juan 
de Vera, Governor of Honduras, over the coast of 
Yucatan confirmed by the cedula of August 23, 1745, 
but merely restored the hierarchical authority over him 
of the Captain General. 

1815. — -Note of Juan Antonio Tornos, Gohernador- 
Intendente of Honduras to the Minister of State for 
the Indies, enclosing a map which embraced the coast 
of the Kingdom of Guatemala from Trujillo to Yuca- 
tan. This map placed the boundary of the Province 
of Comayagua (Honduras) proper to the west of the 
peninsula of ManabiqUe (Amatique). (H. Note, June 
22, 1918, p. 16; H. Misc. Exhs.) 

The cedulas of May 23, 1675, and August 27, 1676, 
which were produced by the Guatemalan Representa- 
tive (Note, Sept. 21, 1918, Index, confirmatory docu- 



IGO 

ments a and b), to prove that Golfo Dulce belonged to 
the jurisdiction of Guatemala, do not serve the purpose. 
At most they indicate that the President of the Audien- 
cia was ordered to provision the military force main- 
tained at Puerto del Golfo. Such provisioning- was 
entirely consistent with the jurisdiction by the Governor 
of Honduras over the region. That this is so is shown 
by the documents of a later date but equal authenticity, 
described hereinabove, which Honduras has produced. 

(4) The Honduranean claim is also supported by the 
cartographical and geographical data. 

At least ten of the maps submitted in evidence by 
Honduras, whose dates run from 1527 to 1854, sup- 
port the contention of Honduras that in colonial times 
her jurisdiction extended to Yucatan; and that neither 
Chiquimula nor Verapaz reached the coast. (Refer- 
ences, supra, p. 90.) In addition should be borne in 
mind the map of Tornos, the Governor and Inten- 
dente of Honduras, sent to the Department of State 
for the Indies in 1815, which indicates the boundary of 
the Province of Honduras proper to lie west of Cape 
Three Points. {Supra, p. 159.) 

The testimony of the geographers and travellers 
corroborates the Honduranean claim to the coast as 
far as Yucatan. Besides Lopez de Velasco (1574) 
and Herrera (1601), who have already been called to 
witness, we refer the Honorable Mediator to the nu- 
merous works, covering the colonial period and the 



161 

early years of the independence, which have been com- 
piled in Dr. Williams' Report. 

Thus Gardyner, in his Description of the New 
World (London, 1651) says of Honduras, p. 144: 

"This Province of the Honduras adjoyneth 
unto the South part of Yucatan, his coast 
stretcheth along the North Sea." 

Bonnycastle, a captain of the British Engineers, 
in his Spanish America (Philadelphia, 1819), wrote 
(p. 132) : 

"The Province of Honduras is a large prov- 
ince of the Kingdom of Guatemala, and is 
bounded on the north by the gulf or bay of 
Honduras, which separates it from the province 
of Yucatan ; and on the west by Vera-Paz". 

Still more specific is the statement of Captain Bird 
Allen of the Royal British Navy. In his "Sketch of 
the Eastern Shore of Central America" {Journal of 
Royal Geographical Society, London, 1841), Capt. 
Allen said (p. 83) : 

"Through this district the stream Manati, 
Mulin's River, Stand Creek Sittee, Monkey 
River, Deep River, Golden Stream, Rio Grande, 
Moho River, Ternash, and the Sarstun flow; 
the last divides4his settlement from the state of 
Honduras." 

And he further asserts (p. 88) : 

"The State of Honduras, one of the five 
districts composing the republic of Central 
America, joins British Yucatan". 



1G2 

See also the following- geographical references com- 
piled by the Representative of Honduras : 

1566. — In this year Father Diego de Landa, 
Bishop of Yucatan, in describing the Province wrote 
(H. Note, August 27, 1918, p. 26) : 

''To the east lies Honduras and between 
Honduras and Yucatan there is a large inlet of 
the sea, which was called Grijalva Baya de la 
Ascension, which is full of islets, in which ves- 
sels lose themselves, principally those plying 
between Yucatan and Honduras . . ." 

1728. — Pedro Rivera Marquez, Continent e Ameri- 
cano, ch. 12 (reproduced as H. Exh. VI), describes the 
coast from Trujillo to Golfo Dulce and states that it 
belongs to the Government of Comayagua. 

1752. — To the same effect is the account by Capt. 
Ignacio St. Just of his voyage on the frigate "Flora". 
(H. Note, June 22, 1918, p. 13; H. Misc. Exhs.) 

1787. — Alcedo, Diccionario Geogrdfico Historico. 
(H. Exh. XIII, no. 20.) He places in the province of 
Honduras, Sto. Tomas de Castilla, Golfete [Golfo 
Dulce] and Cape Manabique [Three Points]. 

(5) The treaty of 1859 between Guatemala and Great 
Britain covering recognition of British sovereignty in Belize 
is not inconsistent with the Honduranean title to what is 
left of the region. 

Counsel for Honduras frankly admit that at the 
present day the treaty of 1859, followed as it has been by 
continuous occupation, has foreclosed any claim which 
Honduras might make against the British Government 



163 

for the recovery of Belize. But as regards the present 
controversy with Guatemala over the remainder of the 
region, from the Sarstoon River to the Motagua, the 
situation is quite different, if the boundary is to be 
defined upon the strict principle of the ^tt^ possidetis 
juris of 1821 as defined by Guatemala. 

Great Britain in the year 1821 was in occupation 
of Belize under a log-cutting concession obtained from 
the Spanish King by the treaty of 1763, which ex- 
pressly reserved his sovereignty over the region. 
(MacDonald, Select Charters, p. 265.) After the 
Central American colonies broke with Spain, Great 
Britain in order to realize her policy of acquiring full 
sovereignty over Belize, was prepared to negotiate a 
treaty either with Spain or with the Central American 
Federation formed by her late colonies, whichever 
would entertain negotiations. Negotiations with 
Spain, suggested in 1829 by the British premier, were 
actually broached in 1846 by the British ambassador 
at Madrid. But finally the British Foreign Office de- 
cided that it would be better to "let the Spaniards 
quietly forget it" and thus to permit to lapse whatever 
claims and interests the Spanish Government had in 
the region, (Williams, Anglo-American Isthmian Di- 
plomacy, pp. 32-36.)^ The treaty was finally negoti- 
ated with the State of Guatemala, rather than with 
Honduras, which was hostile by reason of the British 
occupation of the Mosquito Coast and the Bay Islands 
involving about half the territory claimed by Honduras. 
(Williams, pp. 2>Z, 188; British Pari Papers, 1860, 



164 

Coins., LXVIII, "Correspondence respecting Central 
America", p. 172.) 

There is evidence in the archives of the British 
Foreign Office that as late as 1837-1848, the Hondu- 
ranean Governor of Trujillo attempted to assert au- 
thority in Belize. (PauUin and Paxson, Guide to 
Materials in London Archives for the History of the 
United States, pp. 192-193.) 

As late as 1841 the American Government recog- 
nized that Honduras had legal title to the coast up to 
Yucatan. On August 6 of this year Mr. Webster, Sec- 
retary of State, wrote to Mr. Murphy, American Charge 
d' Affaires in Central America (Sen. Exec. Docs., 32nd 
Cong., 2d Sess., Doc. No. 27, p. 12) : 

"In 1835 the government of Central Amer- 
ica asked for the mediation of this government 
v^ith that of Great Britain, with the view to 
restraining the British settlers at Belize, in Hon- 
duras, from trespassing upon territory beyond 
the confines allotted to them by the treaties be- 
tween Great Britain and Spain in regard to that 
settlement ... ." 

There is also evidence, that as recently as 1865, 
Honduras was in actual occupation of the remainder 
of this region. The Honduranean note of August 27, 
1918 (p. 36) quotes a communication addressed tmder 
date of October 12, 1865, by the Guatemalan Minister 
of Government to his colleague of Foreign Affairs, 
from which it appears that the Guatemalan corregidor 
of Chiquimula, taking advantage of the fact that Guate- 



165 

mala was at war with Honduras, had by force removed 
the Honduranean authorities who were administering 
four villages in the region of Lake Izabal. 

It is not disputed by Honduras that, beginning 
about the year 1892, with the initial work on the Gua- 
temala Railroad, leading out of Puerto Barrios, Guate- 
mala has been in possession of the region west of the 
Motagua River. 

CONCLUSIONS 

It is submitted that, upon the principle of the uti 
possidetis of 1821, to which the Parties are committed 
by the boundary convention of 1914 and by the memo- 
randa filed with the Honorable Mediator in this pro- 
ceeding, the evidence offered by Honduras supports 
these conclusions : 

( 1 ) In the year of independence the Intendencia of 
Comayagua or Honduras extended westward to the 
line of Cerro Brujo — Cerro Obscuro — Portillo de 
Caulotes or Coyoles — Managua River and the River 
Motagua from its confluence with the Managua to the 
sea; and this territory was administered by the tem- 
poral and spiritual authorities of the Intendencia. 

(2) The Minutes of agreement of the Mixed 
Technical Commission under the treaty of 1895, as ap- 
proved by Article 16 of the convention of 1914 now in 
force between the Parties, have irrevocably fixed upon 
Cerro Brujo as the southern terminal of the boundary 
(this being the common frontier point of Guatemala 



166 

and Honduras with El Salvador) ; and upon Cerro 
Obscuro, a point in the line about 25 kilometers north- 
east of Cerro Brujo ; and have determined the modern 
line of possession as far north as the Portillo de 
Caulotes. Honduras contends that in this sector — the 
first sector treated in this Brief — the boundary of 1821 
and the modern line of possession are substantially 
identical. 

(3) The Intendencia of Honduras proper also ex- 
tended in 1821 westv^ard to the line of Portillo de 
Caulotes — Managua and Motagua Rivers ; and this line 
is substantially the modern line of possession, except 
that since its completion the Guatemala Railroad has 
occupied Honduranean territory for a short stretch 
along the confluence of the two rivers. Herein are 
embraced the second and third sectors of the line as 
considered in this Brief. 

(4) In 1821 the Intendente of Honduras also had 
jurisdiction in the unorganized coast territory west of 
the Motagua River, up to Yucatan ; but British authori- 
ties were in occupation of this region beyond the 
Sarstoon River. In very recent years, Guatemala has 
occupied a portion of the remainder of this region. 

(5) The line of the Ulua River and Fonseca Bay, 
which is the only boundary claimed by Guatemala in 
this proceeding, had in the year of independence no 
legal existence. The cedula of September 8, 1563, 



167 

upon which this Hne is based, was repealed by that of 
May 17, 1564, issued eight months later, and all the 
evidence extant from the colonial period shows that 
the earlier cedula never took effect. Moreover, the 
1563 cedula is inconsistent with every constitution 
adopted, and every law passed, by Guatemala since 
independence, and with the treaties of 1839, 1845, 1895 
and 1914 by which Guatemala has been heretofore, or 
is now, bound to Honduras. Finally, Guatemala has 
produced no item of evidence establishing possession 
in the vast region between the line of the Ulua River 
— Fonseca Bay and the line of Honduranean adminis- 
tration whether considered as of 1821 or during later 
years. 

Following the indication of the Guatemalan Repre- 
sentative, who has insisted that the principle applicable 
to the boundary here in dispute is that of the strict 
uti possidetis juris of 1821, counsel of Honduras in 
this Brief have not discussed any considerations of 
equitable compensations or compromise adjustments 
based upon the present-day occupation of the Parties. 
But the attention of the Honorable Mediator is drawn 
to the fact that the two Republics, pursuant to Article 
7 of the Treaty of 1914, are committed to the principle 
of equitable compensations. No arguments put for- 
ward in this Brief on behalf of Honduras should be 
taken by the Honorable Mediator to limit his freedom 
of action in suggesting a compromise line which will 
satisfy the just aspirations of the two Republics and 



168 

settle this long-standing dispute. The Representative 
of Honduras and his counsel adhere to the sentiments 
expressed by the Honorable Mediator in his opening 
address of May 20, 1918. 

New York, November 25, 1918. 

ROOT, CLARK, BUCKNER and ROWLAND, 
Attorneys for the Republic of Honduras. 

Emory R. Buckner, 
Edward Schuster, 
Augustine P. Barranco, 

Counsel. 



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